|
Combined Business and Private Client Website Articles for May
Articles included
- Tribunal service expects rise in employment claims
- Break clause notice became valid once ‘accepted’ by email
- Business failures decreasing but personal insolvencies still high
- Anti-competition clause ‘too restrictive to be enforced’
- Energy performance certificates needed for holiday lets
-
- Consumers should ‘be wary’ when buying legal services
- Grandparents step in to bankroll younger generation
- Woman fails to stop husband knowing of their child’s existence
- Church minister ‘can claim unfair dismissal’
- Man dragged under car awarded £249,000 compensation
-
Tribunal service expects rise in employment claims
Employment claims look set to continue rising, according to an official report by the Tribunal Service.
This is in spite of the fact that claims are already at record levels.
Judge David Latham, who is president of the employment section of the Tribunal Service, says there have been several new employment laws over the last year which have impacted on tribunals.
The new developments include the new statutory system of fit notes, additional paternity leave and new rules governing no win no fee agreements.
In his annual statement, Judge Latham also highlighted how the Equality Act reforms the law in a number of important areas relating to equality and discrimination. This too will affect the number of claims.
He said: “It is expected that this will increase the number and variety of claims made to the Employment Tribunal.”
The warning comes at a time when claims to employment tribunals are already at a record high. Judge Latham said: “For the financial year ended 31st March 2010, the number of claims lodged with Employment Tribunals was 236,100, representing an increase of 56% on 2008-2009.
“Whilst this increase included a substantial rise in multiple claims, single claims alone increased by 14% over the previous financial year. The result was that in that financial year claims with the Employment Tribunal were at the highest level ever.”
The latest figures show that the number of claims continues to rise. For the three months to 30th June last year, the number of claims lodged with employment tribunals was 44,306. That was 4% higher than the same period in 2009.
Please contact us if you would like more information about employment law.
Break clause notice became valid once ‘accepted’ by email
A property management company effectively validated a break clause notice by accepting it as an email – even though the lease required more formal notification.
The case involved a tenant who leased commercial premises for a term of ten years starting on 1st March 2005.
The break clause allowed for termination of the lease after 1st March 2010 providing that the tenant gave six months notice served by hand or by special delivery post.
After five years, the tenant sent the notice by email to the property management company, which replied saying that it accepted the notice and was happy for the tenant to exercise the break clause.
The landlord later disputed that the notice had been properly served. It submitted that the management company’s acceptance of the email notice was merely an acknowledgement of receipt and should not have been taken as an acceptance of notice to exercise the break clause.
The court, however, ruled in favour of the tenant. It held that the acceptance of the email by the management company had to be taken as an acceptance of the break clause notice.
Once the email had been accepted, the tenant was entitled to conclude that nothing more had to be done. It meant the landlord was prevented from challenging the validity of the notice.
Please contact us if you would like more information about the issues raised in this article.
Business failures decreasing but personal insolvencies still high
The number of companies going out of business in England and Wales fell dramatically last year, according to figures from the Insolvency Service
A total of 4,905 businesses went into receivership or administration, or entered into company voluntary arrangements in 2010. That was a fall of 23% on 2009, which was the record year for company insolvencies.
There was also a drop in the number of company liquidations at the end of the insolvency process. There was a total of 16,045 – a fall of 16% compared with 2009.
The decrease is put down to the slight improvement in the economy as it eased out of recession.
However, the Insolvency Service says the number of personal insolvencies remains alarmingly high.
There were 135,089 people declared insolvent in 2010. That was an increase of 0.7% on 2009 and the highest figure since records began in 1960. The figures included a 6.5% increase in Individual Voluntary Arrangements.
The Insolvency Service says that men still make up the majority of bankrupts, accounting for 60% in 2009. However, the number of women bankrupts is growing – rising from 29% in 2000 to 40% in 2009.
The take-up of Debt Relief Orders has been significant with 30,838 using them between April 2009, when they were first introduced, and September 2010.
It’s feared that rising unemployment and the increasing cost of credit could make 2011 even more difficult for both businesses and individuals struggling with debt.
Businesses need to ensure they stay on top of their credit control to ensure they maintain cash flow and keep bad debts to a minimum.
Please contact us if you would like more information about debt collection and credit controls issues.
Anti-competition clause ‘too restrictive to be enforced’
Great care is needed when drawing up restrictive covenants; if they are not tight enough they may not be effective, but if they are too restrictive the courts may not enforce them.
A recent case gives a good insight into how the courts may view certain anti-competition clauses.
It involved an estate agency and one of its former employees. The firm’s terms and conditions contained a clause which stated that for 12 months after leaving the firm, employees could not solicit the agency’s customers, could not set up a rival business within 5 miles of their former office, and could not induce former colleagues to join them.
The anti-competition clause was put to the test when one of the agency’s employees left and set up a rival firm only 1.7 miles from the agency branch where he used to work. The agency took court action to enforce the clause but only met with partial success.
The court held that the former employee had solicited the agency’s clients and so imposed an injunction preventing him from doing so again.
However, the court found that he was not in breach of the clause preventing him from inducing former colleagues to join him. The evidence was that former colleagues had approached him rather than the other way round.
The court also declined to uphold the clause about not setting up a rival firm within five miles. It held that most of the work carried out by the employee while he was with the agency involved non-recurring business. This was not capable of creating a customer connection worthy of protection.
The clause was too wide in its scope and amounted to an excessive restraint of trade. It was therefore void and unenforceable. The agency was sufficiently protected by the anti-solicitation terms.
Please contact us if you would like more information about the issues raised in this article.
Energy performance certificates needed for holiday lets
Landlords who rent out a holiday home on a regular basis will soon need an Energy Performance Certificate or risk facing a fine.
Until now, the certificates have not been necessary for short holiday lets where there is no intention to create a tenancy.
That will change on 30th June when certificates will be needed for holiday homes which are let for four months or more in any 12-month period. This total can be made up of several very short term lets of a week or less.
Ministers have decided that holiday homes should be brought into line with other residential and commercial properties. It means that landlords must obtain a certificate before the home is rented out.
The new rule only applies to buildings and doesn’t include caravans, tents and mobile homes. A building for the purposes of the certificates is defined as ‘a roofed construction having walls for which energy is used to condition the indoor environment’.
This would also include a part of a building such as a self-contained flat. The penalty for non-compliance is £200 per holiday home.
Smaller firms or individuals who let out just one holiday home on a part time basis could be caught out by the change and should ensure that they comply as soon as possible.
Please contact us if you would like more information.
Consumers should ‘be wary’ when buying legal services
The Legal Ombudsman has urged people to be wary of getting legal services from unregulated and often unqualified providers.
Chief ombudsman Adam Sampson revealed that he has received 40,000 complaints about law practitioners since his office was set up six months ago. His team has not been able to deal with many of the complaints because they are against people who are not qualified solicitors.
He said: “We've seen lots of cases where people have had deficient wills where we haven't been able to help.”
The problems stem from the fact that there is no regulation covering some legal services such as conveyancing or divorce.
It means anyone can set up in practice offering these services even though they may not be properly qualified or have any insurance. Consumers may be attracted by cut price deals but they may have no form of redress if things go wrong.
Solicitors, by contrast, are strictly regulated which means they can be held accountable if they make mistakes.
The legal services market is to be opened up to more providers in October.
It will enable a wide range of businesses to enter the market and Mr Sampson fears that the distinction between regulated and unregulated providers will become more blurred: “This problem will only increase as the legal services market reforms, and internet-based provision and commoditisation of legal services increases."
Many of the new providers will be completely legitimate but some may not, leading to more complaints to the legal ombudsman. People will need to think very carefully before making life affecting decisions based on legal advice from providers who may not be qualified or insured.
Please contact us if you would like more information about the issues raised in this article.
Grandparents step in to bankroll younger generation
We’ve become familiar with the idea of the Bank of Mum and Dad helping young people struggling in the recession.
Now it appears that grandparents are becoming increasingly involved in helping out the next generation.
A national survey of 1,200 retired home owners revealed that 23% had raised money from their own properties to help their grandchildren. The average sum was more than £23,000. The money was used to help family members buy a home, a car or just clear debts.
It is only natural that people should want to help their grandchildren but great care should be taken when handing over large sums of money, especially if it involves releasing some of the equity in your home.
It is essential to get legal advice before taking any major decisions.
It’s also important to consider potential tax implications. If you exceed your annual inheritance tax allowances then you would need to live for at least seven years after making the gift to make sure your children don’t end up incurring a tax liability after you die.
One approach is to make use of your annual inheritance tax exemptions. You can currently give away £3,000 a year without having to worry about any tax implications. Both grandparents qualify for the allowance so between them they can give away £6,000 every year.
Grandparents should also consider making use of the exemption available if they make regular donations taken from their surplus income. There are some stipulations to be met but as long as the money is from income over and above your everyday needs then there should be no inheritance tax liability.
Inheritance tax planning can be complicated so it is important to get it right in order to avoid problems for your family in the future.
Please contact us if you would like more information.
Woman fails to stop husband knowing of their child’s existence
A woman has failed in her attempt to prevent her husband from finding out about the birth of their child.
The case involved a married couple who lived together with their grown-up children. The husband had mental health problems which sometimes rendered his behaviour unpredictable and violent.
The wife then gave birth to another son in 2010. She didn’t dispute that the child was her husband’s, but wanted him to be adopted without the husband even knowing of his existence.
She sought court declarations to enable this to happen. However, the court rejected her application.
The judge held that the father’s rights were very strong under the European Convention on Human Rights. Nothing less than a serious physical risk would justify a decision not to inform the father about the birth of his son.
The mother had not provided any objective expert evidence that the father posed such a risk.
The Court of Appeal has upheld that decision, saying that the mother’s case was hopeless and had to be dismissed as it lacked plausibility and profundity.
Please contact us if you would like more information about family law issues.
Church minister ‘can claim unfair dismissal’
A Methodist minister who says she was forced out of her post can make a claim of unfair dismissal, the Employment Appeal Tribunal (EAT) has ruled
The minister said that she resigned in 2009 after being put under unfair pressure. She later brought a claim of unfair dismissal against the Methodist Conference. Her claim was dismissed by an employment tribunal on the basis that she was not an employee.
In considering her appeal, the EAT noted that although she had been appointed in 2006 to a five-year term as a superintendent minister, “she had nothing in the nature of a written contract of employment”.
Nevertheless, the EAT held that the arrangements between the minister and the church were contractual in nature because they involved the offer and the acceptance of a post for a specified period.
Giving judgment, Mr Justice Underhill said: “She received regular remuneration, including an entitlement to sick pay. She was given accommodation. She was required to engage in an appraisal process, was subject to at least a degree of supervision from the church and was liable to a disciplinary procedure.
“Although she did not have to work set hours, there was a clear concept of working time, when she was at the disposal of the church, and holiday, when she was not. Of course, like any professional she had a great deal of discretion as to how she did her work, but that is in no way inconsistent with a contract of service.”
The EAT allowed her appeal that she could be classed as an employee and so should be allowed to bring a claim of unfair dismissal. The case was then remitted back to an employment tribunal which will now determine the merits of the claim based on the facts of the case.
Please contact us if you would like more information about the issues raised in this article.
Man dragged under car awarded £249,000 compensation
A man who sustained permanent injuries when he was dragged under a car has been awarded nearly a quarter of a million pounds in compensation.
The accident happened when the man was waiting to cross the road. He was standing behind a parked vehicle which suddenly started to reverse. He was pulled under the vehicle and suffered severe multiple injuries.
Most of the injuries were to his face. Some of his teeth were knocked out and he fractured his nose and right eye socket. He was left with double vision in his right eye.
He also broke several ribs and fractured a vertebra, which left him with back pain and restricted his ability to walk.
The man was 53 at the time of the accident. He had to give up his job as a bus driver and also lost his HGV licence because of his double vision. It’s unlikely that he will ever be able to work again.
He also developed psychiatric problems including post-traumatic stress disorder and agoraphobia. He would not leave the house unless motivated by his partner.
The driver admitted liability for the accident and compensation of £249,000 was agreed in an out-of-court settlement.
Anyone who is injured as a result of someone else’s negligence is entitled to claim compensation. Please contact us if you would like more information.
Case List
Break clause notice became valid once ‘accepted’ by email
[2011] EWHC 104 (Ch)
(1) MW TRUSTEES LTD (2) ROBERT POSEL (3) PAMELA POSEL v TELULAR CORPORATION (2011)
Ch D (Peter Smith J) 9/2/2011
Anti-competition clause ‘too restrictive to be enforced’
TIM RUSS & CO (A FIRM) v (1) SIMON ROBERTSON (2) ANDREA MAYO (3) ROBERTSONS ESTATE AGENTS LTD (2011)
Ch D (Mann J) 5/4/2011
Woman fails to stop husband knowing of their child’s existence
[2011] EWCA Civ 273
M v (1) F (2) H (A LOCAL AUTHORITY) (3) BA (BY HIS GUARDIAN) (2011)
CA (Civ Div) (Thorpe LJ, Longmore LJ, Black LJ) 17/3/2011
Church minister ‘can claim unfair dismissal’
Moore v President of the Methodist Conference (UKEAT 0219/10/DM), Underhill J
Man dragged under car awarded £249,000 compensation
C v F (2010)
Trial/settlement date: 21/9/2010
Type of Award: Out of Court Settlement
Court: Out of Court Settlement
Age at trial: 57
Age at injury: 53
Sex: Male
Links to useful organisations
|
Back to legal articles