Next Trainee Solicitor Intake

Trainee Solicitors:

We will be interviewing candidates for the next intake in Spring 2010, with a contract start date of September 2011.

Applications, by email, can be accepted from January 2010 and those we wish to take further will be contacted.

Self Employed Workers Claim Unfair Dismissal

Many contractors who are really employees, wrongly pretend to HMRC that they have self employed status. Yet they turn up to work every day, are controlled by the employer, not allowed to substitute a different person to undertake the work and have all the hallmarks of being employed. In a recent Court of Appeal case it was held that two such workers could later argue they were employed when it suited them.

Andrew Bryan says:

"This case should serve as a warning to employers to be absolutely sure that workers are really self-employed, otherwise their contractors might later bring unfair dismissal claims if their contract is terminated, which is only possible for employees who have worked for a year for that employer. It is also worth, on a regular basis, having lawyers check your consultancy and contractor agreements and also advise on whether individuals really are employees or not.

The interesting legal point in this case was that the employer was saying the employees (Mr Payne and Mr Grace) could not, in effect, lie about their legal status when it suited them for tax purposes. Then completely change their view when it suited them to bring an unfair dismissal claim against the employer, arguing that they were employees all along. The employers tried to argue that the contract was "tainted with illegality" as the individuals had misrepresented to HMRC that they were self employed when they were employed. The court found that the individuals were originally taken on a self-employed basis but later the employer had suggested to them they were employed. Obviously, if an employer can avoid making any such suggestions that will put the employer on much stronger ground. The court thought there was an error of categorisation of the employment contract rather than an illegality or misrepresentation by the employees and they could bring claims as if they were employees.

It is important that contracts are correct and the distinction does matter between employees and contractors. For example, if the contractor is producing work protected by copyright or patents the contractors will retain ownership unless the contract says otherwise, whereas with an employee, copyright and patent rights automatically rest with the employer."

Contact us if you need advice on your employees and contractors.

Employment Law Changes

1st October is always a key date for changes in employment law and this October is no exception. Andrew Bryan says:

“There are three main changes this October:

Holidays
The Working Time (Amendment) Regulation 2007 now provides that all employees are entitled to 24 days holiday a year including bank holidays for full time 5-day a week workers. Many workers already have 20 days plus bank holidays so are over the new threshold but some may not and for those this will be a big change.

Flexible working
The Flexible working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2007 extend the right to request flexible working to private foster carers and relatives of private foster carers.

Minimum Wage
The minimum wage rises to £5.52 per hour. For 18–21 year olds it is £3.40 per hour. For under-18s it is £3.40. There is no minimum for those under compulsory school leaving age.

The Equality Act 2006 also came into force on 1st October and the new Commission for Equality and Human Rights (CEHR) replaces the previous equality bodies including the EOC. If you need any advice on employment law changes, contact us for further information Andrew 023 9221 0170.

Employees’ Rights – Transferring a Business

If you have ever been involved with the sale of a business, you might know that employees’ rights are protected under regulations known as TUPE. The Government has just published new regulations in this area which come into force on 6th April 2006.

The regulations aim to clear up some grey areas and make things more certain in this field. The Transfer of Undertakings (Protection of Employment) Regulations 1981 are amended by the new regulations and the changes:

• Extend TUPE to cover additional areas where services are provided but not where they are just provided on a one-off basis


• Require the old employer to provide the new employer with details of any employment liabilities - if this is not done compensation can be awarded against the old employer


• Introduce new flexibility where there is a transfer of insolvent businesses


• Clarify the circumstances in which employers and employees can change the terms and conditions of employment for "economic, technical or organisational" reasons


• Clarify the circumstances under which it is unfair for employers to dismiss employees for reasons connected with a relevant transfer

Call Andrew Bryan on 02392 210 170 for further information or help when you sell or buy a business.

No Smoking

Since 1st July 2007, it has been against the law to smoke in enclosed or virtually enclosed public places and workplaces, including vehicles. Andrew Bryan says:

"We have been advising local businesses on the new law. They need to make sure they have the following:

• All the required no smoking signs in place
  
• Staff, customers, members or visitors are aware that the premises and vehicles are legally required to be smoke free


• All existing smoking rooms have been closed or removed

It is now against the law to smoke in most enclosed and substantially enclosed public places and workplaces. Some local councils are considering banning it in public parks too. Premises are “enclosed” if they have a ceiling or roof and are wholly enclosed either on a permanent or temporary basis (except doors, windows or passageways). Premises will be considered substantially enclosed if they have a ceiling or roof, but have an opening in the walls which is less than half the total area of the walls. The area of the opening does not include doors, windows or other fittings that open or shut. A smoking shelter that has a roof, back and two sides will be substantially enclosed.

If a company decides to provide a unenclosed smoking shelter, it must check with the local authority as there may be planning permission required, licensing, building control and noise issues to consider. Private clubs and company cars are also subject to the ban. Those using their home for work purposes will also have to abide by the rules in those places where clients or customers go, and will need to put up No Smoking’ signs. On the spot fines of £150 can be imposed, as well as other penalties."

If you want legal advice on these new rules or any other health and safety issue relating to your business call Andrew on 023 9221 0170.

Rights for Carers to Request Flexible Working

Carers now have a right to request flexible working, just as parents in the workforce already do. There are an estimated 1.6 million employees providing various kinds of unpaid care often for a spouse, elderly parent or other relative. As with parents it is a right to request flexible working, not a right to be granted it.

Andrew Bryan says “Although it is merely a right to make a request, it must be properly considered by the employer and, indeed, with parents the right has led to many flexible working arrangements being approved by employers. Since April 2003, mothers and fathers of children aged under 6, or disabled children under 18, have the right to apply for a flexible working pattern. The Employment Act 2002 gives working parents of disabled children under 18 the right to request flexible working arrangements too. The new right for carers applies if you are caring, or expect to be caring, for a spouse, partner, civil partner or relative or someone you live with. Carers also have the right to take (unpaid) time off work for dependants in cases of emergency.

"Even if the request will be refused proper procedures must be followed. Therefore, it sets out eight business grounds under which an employer can refuse a request. Employers may only refuse a request under one or more of these grounds:

• Burden of additional costs


• Detrimental effect on ability to meet customer demand


• Inability to reorganise work among existing staff


• Inability to recruit additional staff


• Detrimental impact on quality


• Detrimental impact on performance


• Insufficiency of work during periods the employee proposes to work


• Planned structural changes

When refusing a request you must write to your employee stating the ground for refusal and why it applies in the particular circumstances."

If you need guidance on how the new rules apply to you as a carer or as an employer, contact Andrew on 023 9221 0170 for further information.

New Equality Legislation

On 30th April, new equality legislation came into force which protects against discrimination on the grounds of sexual orientation, religion or belief when accessing goods, services and facilities. Legislation banning such discrimination in the employment context has been in force for some time. The new rules have been in the press because some religious groups have wanted exemptions, such as to allow Catholic or Muslim adoption agencies to refuse to place children with gay couples.

Andrew Bryan says : “The rules could have a wide impact. It is now illegal, for example, for a shop or restaurant to refuse to serve someone on the grounds of their religion or because they are homosexual. Similarly, it would be illegal for a school to discriminate against a child because of their parents' sexuality. The guidance which accompanies the regulations make it clear that businesses need to provide services in a non-discriminatory way. The new regulations are very similar to existing anti-discrimination measures that provide protection from race and sex discrimination in service provision.

The regulations mean that business must not -

• Refuse to supply your normal service to someone, or treat them less well than others, on ground of their actual or presumed sexual orientation, or that of someone with whom they are associated or on ground of their religion or belief (or their lack of religion or belief)


• Apply provisions, criteria or practices which put, or would put, people of a particular sexual orientation or people of a particular religion or belief at a disadvantage compared to others


• Treat civil partners on an unequal basis to those who are married, or treat same sex unmarried couples on an unequal basis to mixed-sex unmarried couples, in either case on grounds of their sexual orientation


• Treat someone less well because they have been involved in making, or supporting, a complaint about discrimination of this kind; unless they were acting maliciously in knowingly making a false complaint
• Advertise in a way which indicates an intention to discriminate unlawfully or get someone else to do any of these things

For further information contact Andrew on 023 9221 0170

Business Law

Many local businesses feel caught up in red tape and new regulations in fields from employment law to health and safety. Stuart Nuttall says:

"We spend a lot of time with business clients and those starting a business advising on the various legal areas they need to consider. In December the Government announced major plans to cut red tape and we can advise on these changes too. The simplification plan aims to save businesses up to £700m a year."

Key measures in the DTI simplification plan include:

• New plans to simplify consumer protection legislation by replacing and improving provisions in twenty-two pieces of consumer legislation, through DTI-led implementation of the Unfair Commercial Practices Directive – in December the full proposals for this were set out


• The new International Trade Single Window to allow traders to lodge information with a single body to fulfil all import and export regulatory requirements. The one-stop-shop has just gone live through the Business Link website. Savings are expected to amount to about £60m a year


• A review announced to simplify and improve employment dispute resolution


• A Retail Enforcement Initiative establishing new ways of working between trading standards, environmental health, and health and safety and fire authorities to achieve a third fewer inspections for compliant businesses


• Companies will be allowed to communicate with shareholders electronically rather than in writing, saving larger firms £100,000-400,000 per mailing, with the implementation of the Companies Act 2006


• Form filling and access to Companies House registration and database services is being improved through automated systems. Over 50% of annual returns are being filed electronically. The £13m savings could be increased by a further £60m as a result of a joint filing initiative with Her Majesty's Revenue and Customs

If you need any advice on any of these areas call Stuart Nuttall on 023 9286 2424.

Age Discrimination and Pensions

Since 1st October, age discrimination has been prohibited. Employers are allowed to require employees to cease work on their 65th birthday but only if a special new procedure is followed first. Following on from this regulation (which will improve the pensions aspects of age discrimination) laws have been laid before Parliament. Andrew Bryan, partner, says:

Since 1st October, age discrimination has been prohibited. Employers are allowed to require employees to cease work on their 65th birthday but only if a special new procedure is followed first. Following on from this regulation (which will improve the pensions aspects of age discrimination) laws have been laid before Parliament.

Andrew Bryan, partner, says:

“Pensions clearly depend on age and often do contain age discriminatory aspects. The pensions aspects of the general age discrimination legislation was postponed by 2 months to enable employers and pension schemes to adjust to the new rules. The new rules contain exemptions from the discrimination legislation for pension schemes but will need to be closely scrutinized by those involved in this area.

If you need any advice on this area let us know. This month, the High Court begins hearing a claim regarding UK age discrimination legislation in a test case brought by Heyday which is backed by Age Concern. A similar case has just gone to the European Court of Justice relating to Spanish laws which could have an impact on the Heyday case. Heyday said "People want the choice to continue to work but they don't want to feel they are being given their P45 on the basis of their birth certificate". The government has said it will review the decision to allow a statutory retirement age in 2011.

Call Andrew Bryan on 023 9221 0170 for further information.

Maternity Pay

Many local businesses are unaware of important changes to the rules on maternity pay which could affect their business.

Andrew Bryan says:

“Employment law can be a complex area. Anyone who has to wrestle with maternity and paternity rights needs to ensure that they are up to date and comply fully with the current law. The Work and Families Act has brought in some increases in maternity pay which is likely to benefit about 400,000 women around the UK each year. One of the changes is 'Keeping in Touch' days. These are not compulsory but they Many local businesses are unaware of important changes to the rules on maternity pay which could affect their business give employers and mothers an opportunity to get the mother back to the office for a few days during maternity leave, to ensure they are up to date with what is happening in the office. Since 1st October, statutory maternity pay, maternity allowance and statutory adoption pay will increase from six months to nine months for babies due on or after 1st April 2007, or adoption placements from that date.

This is the start of the Government’s plan to introduce 12 months paid maternity leave. However, the system still remains that mothers are paid 90% of pay for only six weeks. After that, rates plummet to levels which, for higher paid workers, mean in effect they have to return to work to keep income at previous levels. In addition, the new regulations:

• double the amount of notice required from one to two months for women wanting to change their return to work dates from maternity leave


• introduce up to 10 'Keeping in Touch' days to allow mothers to go into work and stay in touch with developments and training there without bringing their leave to an end or losing out on maternity pay


• simplify the administration of maternity payments and allow employers to adjust them in line with their normal payroll procedures


• extend the eligibility for additional maternity leave to all pregnant employees where births are due on or after 1 April 2007

Call Andrew Bryanon 029 9221 0170 for further information.

Long Service and Employment

May you pay your employee more because they have more years’ experience? This is the issue many employers are wrestling with since 1st October when the age discrimination legislation came into force. In October, the European Court of Justice, in a landmark case, held that this is lawful unless an employee can bring evidence to raise serious doubts that the longer service person does not perform their duties better because of the extra experience acquired.

“Bernadette Cadman was a health inspector. She sued the Health and Safety Executive in 2001 when she found her pay was up to £9,000 pounds a year less than male colleagues in the same post. She said her employer unjustifiably paid male staff at the same grade more only because they had worked more years, and that length of service often depended on domestic circumstances such as pregnancy and maternal leave. The employment tribunal will now have to decide in her case whether the less service she served did in fact make her less able to perform her duties.

In some jobs, after a few years people do not necessarily become better at the work and therefore paying them more salary than those with fewer years of service could be unlawful and in some cases sex discriminatory. Some women (and some men) take time off for several stints of maternity leave and if this means she (or he) has fewer years of service, and this matters to competence in that job, then the parent could be paid less than a similar parent who chose to work during the early years of their children’s childhood.

Contact us if you need any advice on issues of long service, sex discrimination and your pay structures for particular levels of employees.

Call Andrew Bryan on 02392 210 170.

New Fire Safety Rules

1st October saw the introduction of new fire safety rules. More than 70 separate rules have been abolished and in their place a unified system which applies to all buildings used by the public (except homes) has been introduced.

The new legislation abolishes fire certificates and in their place requires the appointment of a “responsible person” to ensure compliance. The new rules lay much store on prevention and having procedures to assess risks and reduce them. The main rules are that you must:

• carry out a fire-risk assessment identifying any possible dangers and risks;

• consider who may be especially at risk;

• get rid of or reduce the risk from fire as far as is reasonably possible and provide general fire precautions to deal with any possible risk left;

• take other measures to make sure there is protection if flammable or explosivematerials are used or stored;

• create a plan to deal with any emergency and, in most cases, keep a record of your findings; and

• review your findings when necessary.

The responsibility lies with the person who has control over premises or some control over particular areas of them. Those who work from home may also be affected by the new rules. Contact us for advice if you are unsure as to how the new legislation affects you.

Call Ian Robinson on 02392 862424.

Employees - Fixed-term contracts

From 10th July 2006 any employees on fixed term contracts might become permanent. Not all local businesses are aware of these changes.

Partner, Andrew Bryan says

“The Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (the “Regulations”) provide that an employee who has been employed continuously under a fixed-term contract (or a number of successive fixed-term contracts) for four or more years, starting on 10 July 2002, will become a permanent employee. This has the effect that from 10th July, employees on fixed-term contracts may become permanent members of staff.

Some employers can justify objectively the use of fixed-term contracts at the date the contract was entered into, or last renewal and avoid the permanent status. There is no guidance in the Regulations on what may constitute an ‘objective justification’, but it looks like employers will have to show that there is a very real need to keep employees as fixed term and denying permanent status is appropriate. However, local businesses need not be too concerned as fixed term employees have similar rights to permanent employees under those regulations.

Contact us for Andrew Bryan on 02392 210 170 for advice on how this might affect your business.

Age Legislation

It won’t affect me, will it?

Yes, it will affect you.

On 1^st October 2006, legislation outlawing age discrimination will come into force. It will cover both employment and vocational training. It will cover both the private and public sectors and every organisation. It will include every member of your workforce, young and old. It will apply to everyone you employ, whether that’s one, 100 or 1,000.
Employers will have to adopt age positive practices. This means you will no longer be able to recruit, train, promote or retire people on the basis of age.
In March 2006, the Employment Equality (Age) Regulations 2006 were published. These can be viewed by visiting the Department for Trade and Industry website at http://www.dti.gov.uk/employment/discrimination/age-discrimination/index.html

The new legislation doesn’t just concern older people; it covers young and old alike throughout their working lives. Skills, experience and the ability to do the job are what’s important, not someone’s age. This will require a major cultural change in businesses throughout the UK. That’s why it’s important to start planning now.

Others’ experiences

It doesn’t take long for the consequences of not complying to bite. Take the example of the Republic of Ireland where allegations of ageism now make up 19% of Ireland’s formal discrimination claims. Defending their case is proving highly costly for employers. However, it doesn’t have to be this way – just be prepared.

What the new regulations mean in practice!

Pay and benefits

A “five-year exemption” clause means that benefits based on a length of service requirement of five years or less can continue.

Beyond that, length of service can be rewarded provided the employer can show an objective justification, for example, that there is an advantage from rewarding loyalty, encouraging motivation or recognising experience.

All employees whatever their age, will be entitled to the same level of benefits, even if providing that benefit to one age group incurs a greater cost for the employer.

So if an employer chooses to allow employees to work beyond the retirement age of 65, the fact that a benefit such as permanent health cover becomes more expensive will not justify the employer in not providing that cover if they still provide it to younger employees.

Retirement

Under the new regulations the national default retirement age is 65.

Compulsory retirement before 65 is unlawful, unless the employer can show that there is a legitimate business reason for it.

In addition, the employee has the right to request to work beyond 65, and the employer must inform the employee of this right.

If a request is made, the employer must consider it.

Having considered it, the employer is free to decide whether to grant it or not.

Criteria for extending the retirement age beyond 65 will need to be consistent to avoid accusations that retirement is used selectively as a tool for dismissal.

Harassment

As with other areas of discrimination, it is not only individuals who carry out harassment who are at risk – there is also a vicarious liability upon the business that employs them.

It is not enough for businesses to claim that comments or actions were unauthorised.

To avoid liability businesses must show that they have taken all reasonable steps to prevent harassment, that staff are aware that harassment will not be tolerated and that a complaints process is in place for staff who feel they have been harassed.

If you need further guidance please contact Andrew Bryan on 02392210170 or abryan@churchers.co.uk.

Protection for Whistleblowers

Never sack an employee because they blow the whistle. The law protects employees in this position. Always take legal advice first.

In a recent case against Abbey National, the court looked at the law in this field – the Public Interest Disclosure Act. The Court of Appeal said that the Act protected ex-employees as well as current employees and the ex-employee concerned could bring a claim under the Act. Employers should consider setting up a system whereby an employee with a concern over another employee such as engaging in bribery, price fixing or breach of health and safety law, for example, has some means of raising the matter internally. This could be with the company secretary or a senior director direct, rather than with their boss who may be implicated in the problem. This can help the company concerned manage the issue appropriately but if the employee chooses to notify the authorities then their legal position is protected by the 1998 Act.

If you have any disputes with employees or may be proposing to sack a member of staff it is wise to seek legal advice first. Call Andrew Bryan on 02392 210 170 for further information.

_____________

Notes

1. The case is Woodward v Abbey National plc (No 1) [2006] EWCA Civ 822
The case held that thePublic Interest Disclosure Act 1998 extended to a claim against a former employer alleging detriment suffered after termination of a claimant’s employment.

2. The claimant made a complaint under s 48 (1A) of the Employment Rights Act 1996 that, after her employment had ended, she had suffered a detriment contrary to s 47B(1) on the ground that she had made a protected disclosure during her employment with the respondent employer. At a preliminary hearing an employment tribunal held that it had no jurisdiction to hear the claim as the alleged detriment had occurred after the termination of her employment. The Employment Appeal Tribunal upheld the decision but the Court of Appeal overturned it.

Organizing Your Company

Too many businesses in the UK operate without a written agreement between partners and shareholders. Then when things go wrong or one person wants to leave the business it is not clear what should happen.

This is a common problem. When a shareholder or partnership dispute arises, the first thing solicitors ask to see is the written agreement but often there is none. Yet it does not take long at the start of a business relationship to draw up a document saying how things are organised. We would usually deal with issues such as how profits are shared, what happens if someone dies or wants to leave and when shares for a limited company can be bought or sold. Frequently, directors also do not have service or employment contracts when they ought to. A company’s Articles of Association are not a substitute for a well drawn shareholders’ agreement. Different issues arise depending on the number of shareholders. A “50/50 two director/shareholder company” will be a different entity to a “5 shareholders with 20% each” body. It is wise to have a list of matters to protect those with a minority of the shares in a company from changes which could otherwise be forced on them, such as dilution of their shareholding or a change in business focus.

There will be some changes to the law in this field when the Company Law Reform Bill is enacted, but it will not affect shareholder agreements in a major way. It will codify in one place the law on directors’ duties, which will prove very helpful for directors.

Call Michael Goodwin on 01329 822333 for information on this area.

Recent Changes to Pay and Conditions

Many local employers find that they fall foul of complex employment law provisions, particularly those concerning maternity rights and the minimum wage. These are two areas where regular advice on the current legal requirements is useful.

From October 2005, the adult rate of the national minimum wage for those aged 22 or more will increase by 20p from £4.85 per hour to £5.05 per hour. From October 2006, they increase again to £5.35 per hour. The youth rate for 18-21 year olds will increase to £4.25 per hour in October 2005 and £4.45 per hour in October 2006. There was no increase in October 2005 to the £3 per hour rate for 16-17 year olds. However, the Low Pay Commission is keeping this under review and will report back in 2006.

Another major change from 6 April 2005 is the obligation to consult employees. Employees in larger organisations gain new rights to be informed and consulted about developments in the workplace. The legislation implements the EC Directive on Informing and Consulting Employees and is based on a framework agreed with the CBI and TUC.

Employees in organisations with 150 or more employees will now have a right to be informed and consulted on a regular basis about issues in the organisation that they work for. Organisations with 100 or more employees will come within the scope of the legislation in April 2007. Those with 50 or more employees will be included from April 2008.

However, the requirements of the legislation do not necessarily apply automatically. An employee request must be made by at least 10% of the employees of an organisation (subject to a minimum of 15 employees and a maximum of 2,500 employees). Also, existing agreements on information and consultation may continue where they enjoy the support of the workforce.

The new law is designed to encourage employers, employees and their representatives to agree information and consultation arrangements that suit their particular circumstances. It is not designed to spell out the subjects, method, timing or frequency of the arrangements that are allowed. Agreed arrangements may cover more than one company, or different processes may be established in different parts of an organisation.

In situations where no agreement on arrangements is reached between employer and employees, standard provisions based on the Directive apply as a fallback. These require the employer to inform employee representatives about the organisation’s activities and economic situation. It also requires them to consult on employment issues and major changes in work organisation or employees’ contractual relations.

If you need advice on your obligations as an employer, please contact Andrew Bryan on 023 9221 0170 or by email.