Blog

Constructive Dismissal: A Guide

17-08-2018

If you think you’re the victim of constructive dismissal, then you’re in the right place. Michelle Morgan, Senior Associate in our Employment team has put together a guide to tell you exactly what constructive dismissal is, and how you can deal with the consequences of what can be a very stressful situation. What is Constructive Dismissal? Put simply; this is when an employee is forced to leave their job because of their employer’s behaviour. There’s a list of issues that could qualify as bad behaviour, but you need to know exactly what could be regarded as contributing to constructive dismissal, and what doesn’t. Who Can Claim Constructive Dismissal? Employees who have served under the same employer for two years’ or more can make a constructive dismissal claim. This two-year timeline includes your statutory notice period. The Explanation for Leaving Needs to be Serious If you’ve been forced to leave your job due to any of the following reasons, you might be experiencing constructive dismissal: Your employer refuses to pay for the work you’ve completed; Your employer took away the benefits your contract entitles you to, without explanation; You’ve brought a grievance to your employer’s attention, and they’ve refused to investigate; […]

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An Update on The Unfair Contract Terms Act 1977

09-08-2018

Posted by Jack Hobbs

The Unfair Contract Terms Act 1977 (“UCTA”) has long protected parties by prohibiting the enforceability of unfair exclusion clauses within contracts. Whilst some liabilities cannot be limited, such as liability for fraud by a contracting party, others require the satisfaction of the reasonableness test to remain enforceable. The UCTA reasonableness test, within Section 11 of the Act, is employed to assess whether terms included in a contract are fair and reasonable when taking into account the knowledge of the parties and the knowledge they ought reasonably to possess at the time of entering into a contract. The burden of proof is upon the party seeking to rely upon the clause. The recent case of Goodlife Foods Limited v Hall Fire Protection Limited [2018] EWCA Civ 1371 illustrates the Court of Appeal’s approach towards the implementation of the use of UCTA within commercial contracts. Goodlife Foods Limited (“Goodlife”) is a Warrington based company which produces vegetarian pre-packaged meals. Goodlife contracted Hall Fire Protection Limited (“Hall”) for the installation of a fire suppression system for its factory. Ten years later, in 2012, a fire at the Warrington factory occurred which Goodlife envisaged should have been prevented by the system provided and installed […]

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Landlords must act carefully with rental deposits

02-08-2018

Posted by Sam Pinder

Claims for incorrectly handled property rental deposits are soaring and landlords should be alert to the danger and ensure they or their agents are complying with the legal requirements, if they want to avoid high penalties. According to figures from insurers, the number of claims relating to deposits peaked at 25% of all professional indemnity claims made by estate and letting agents in the first quarter of this year, up from just 3% last year[1]. The claims most often relate to a landlord lodging a deposit late or failing to provide the correct information to the tenant about the terms and the deposit scheme used. Under the Housing Act 2004, any deposit must be held by the landlord in a registered deposit protection scheme and the tenant must be given specific details of the deposit protection scheme used and details about how the scheme works within 30 days. If a court rules that a landlord has failed in their duty, it can impose fines of up to three times the value of the deposit, which must be paid within 14 days of the court order. Depending upon the circumstances, a landlord may be able to bring a claim against the […]

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Maternity leave – your rights

01-08-2018

Posted by Michelle Morgan

Maternity leave is an important period for all working mums. It gives women an opportunity to prepare for the birth, then bond with and care for their child during the first days, weeks, and months of their life. Here, Michelle Morgan, senior employment specialist, takes a look at what rights you have when it comes to organising and taking maternity leave. Who is eligible for maternity leave? Maternity leave is available to those women classed as an ‘employee’. It is not available to those classed as ‘workers’. The distinction between the two can be difficult to define and there are a number of notable exceptions. All employees are workers, but an employee has extra employment rights and responsibilities that don’t apply to workers who aren’t employees. These definitions of ‘employee’ and ‘worker’ are generalisations and it can be difficult to tell which of the two categories you fall into. As always, there are a number of exceptions to the rule. For instance, there are different rules and rights for those in the armed forces and police, or if you’re self-employed. If you’re unsure about your status, it may be a good idea to us for assistance. What are your rights? […]

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Insight not hindsight: implying terms into commercial contracts

27-07-2018

Posted by Katie Dyson

In the recent case of Robert Bou-Simon v BGC Brokers LP [2018] EWCA Civ 1525, the Court of Appeal considered the test that must be met before implied terms may be introduced into a commercial contract. Background Mr Bou-Simon was employed by BGC, a brokerage firm specialising in financial instruments. Towards the end of 2011, it was agreed that Mr Bou-Simon would become a partner of BGC and the parties subsequently executed a number of contracts to that effect, including a loan agreement (the “Agreement”). The Agreement provided that: BGC would pay Mr Bou-Simon the sum of £336,000 (the “Loan”); Mr Bou-Simon would repay the Loan via deductions from his net partnership distributions; and should Mr Bou-Simon leave BGC, the balance of the Loan would be written off so long as Mr Bou-Simon had served as partner for at least four years. The Agreement made no provision for the repayment of the Loan in the event that Mr Bou-Simon left BGC without serving as partner for at least four years. Predictably, that is precisely what happened. The Court was tasked with determining whether Mr Bou-Simon was required to pay the balance outstanding to BGC. BGC maintained that Mr Bou-Simon was […]

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Working in the summertime – can it be too hot to work?

24-07-2018

Posted by Julie Taylor

Summer 2018 looks set to be a record breaker and media coverage continues to make comparisons with the long, hot summer of 1976. We’re reminded to drink lots and wear sunblock and basically take care, like you would on holiday. However, holidays usually mean the main worries are how long before you get in the pool again or how many ice creams it’s reasonable to eat in a day, whereas at home, working to pay for the holiday means getting the job done. So, can it be too hot to work? Are employers legally required to keep the workplace temperature within a certain range? Should employees finish early if it gets too hot or be allowed to take a Siesta? The short answer is no. There are not any specific legal requirements for employers to let employees go home when it’s hot. The Gov.UK (https://www.gov.uk/workplace-temperatures) guidance on workplace temperatures is that the temperature of all indoor workplaces must be ‘reasonable’. There is no law stating what the minimum or maximum working temperatures are, so it’s therefore down to the discretion of the employer. In terms of guidance by numbers, there is a minimum of 16°C, or 13°C if employees are […]

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Considerations if a Lease is forfeited for rent arrears

23-07-2018

Posted by Joanna Hemsley

 A commercial landlord should consider the implications of exercising its right to forfeit a lease before taking steps to do so. To forfeit a lease, the landlord must issue court proceedings or change the locks to prevent access to the tenant by peaceable re-entry. It should be noted a landlord’s right to forfeit a lease will depend on whether the tenant has breached a condition of the lease i.e. a fundamental provision which goes to the root of the contract. Before effecting Forfeiture The right to forfeit a lease is a stringent tactic and should only be exercised if the landlord becomes aware of a significant breach of the lease, for example if a tenant fails to pay the rent. Once the tenant has breached a term of the lease, the landlord must be careful not do anything which would inadvertently waive its right to forfeit, such as accepting payment towards rent arrears or demanding the rent. Should the landlord do so, it is arguable that it has acknowledged the lease as continuing to exist and therefore has waived the right to forfeit for that particular rent quarter. If the landlord waives its right to forfeit unintentionally, it will get […]

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GDPR: How’s it going?

19-07-2018

Posted by Julie Taylor

Now that the GDPR is in force, it’s essential businesses ensure they’re following the new regulations. Non-compliance has the potential to cause significant financial damage and the enforcement agencies operating in the EU nations will be taking their new responsibilities seriously. Here, I highlight a few GDPR basics, examine what’s changing and what non-compliance could mean for your business. GDPR Basics The General Data Protection Regulation (GDPR) came into effect on the 25 May 2018. It applies to all member states of the EU and introduces a number of new processes, procedures, rights, and responsibilities concerning the way organisations handle personal data. The regulations aim to standardise data management practices across Europe and ensure that organisations are collecting, storing, transferring, and deleting data in a secure and ethical manner. How should data be handled? The GDPR is mainly focused on the management of both ‘personal data’ and ‘sensitive personal data.’ Personal data means any information that could identify an individual, such as names, addresses, phone numbers, and IP addresses, among other things. Sensitive personal data is information that is not readily available, like religious or political beliefs, sexuality, and genetic information. To address the major implications of GDPR, there are […]

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New report warns of looming incapacity crisis

04-07-2018

Posted by Penny Wright

A new report from SFE (Solicitors for the Elderly) and independent think tank, Centre for Future Studies, reveals the UK is leaving medical and care preferences to chance. The report looks at the ever-increasing number of people living with dementia which, combined with the failure to plan ahead for mental incapacity, exposes a looming crisis. 97% of people in the South East region leave important health and welfare decisions to chance By 2025, it’s calculated that 15.2 million people will be at risk of mental incapacity and it’s estimated that 2.2 million health and welfare LPAs will be in place. This shows that the health and welfare wishes of 13 million people will not be taken into account. 71% would like a family member to make medical and care decisions on their behalf, in the event of mental incapacity, but this is not the case. These decisions are out of a loved ones’ hands if a registered health and welfare LPA is not in place. A staggering 68% of people in the South East region incorrectly believe that their next of kin can specify what they would have wanted if they are no longer able to. 80% haven’t discussed end […]

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Nicanor Parra – a poet’s last wishes

21-06-2018

Posted by Farah Ali

“Before I go I’m supposed to get a last wish: Generous reader Burn this book It’s not at all what I wanted to say Though it was written in blood It’s not what I wanted to say. No lot could be sadder than mine I was defeated by my own shadow: My words took vengeance on me. Forgive me, reader, good reader[…] Written by one of Latin America’s most profound poets, Nicanor Parra, who was heralded for his “antipoetry” movement, leaves thought-provoking words particularly poignant following his death earlier this year. Other than the nuances of his globally acclaimed poems, the challenges made to his will by his children have also been subject of recent discussion. Parra’s eldest children, Catalina and Alberto challenged their poet father’s will earlier this month arguing that he was in a state of “cognitive impairment” at the time of signing the will. On this basis, they claimed that their father’s will be declared invalid as he was not in the correct state of mind or physical health at the time of signing. The Wills Act 1837 stipulates that in order to be a valid will the testator must have the necessary capacity and intention as […]

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What is a right of way?

08-06-2018

Posted by Andrew Shipp

If you’ve discovered an easement running through your property, you may be wondering who has access and who can pass over your land. There are a number of different types of easement, each of which allows for different usage of the land. Here, we take a look at each of the different forms and explain who is provided access in each case. What is an easement? At its most basic, an easement is ‘the right to use another person’s land for a stated purpose.’ The easement could refer to an entire property, or just a part of it, and the ‘stated purpose’ could refer to as diverse a range of activities as laying water pipes, accessing an otherwise unaccessible property, or joining two separated properties. An easement is granted by one property owner to another, and typically means the original landowner can no longer build on or around the easement, or restrict access to it. What is right of way? A right of way is a type of easement. Normally a right of way easement is agreed upon by adjoining landowners. This may be because it’s necessary to cross one property in order to reach the other, the easement allows […]

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