Friday 13 December 2013

Appeals in Disciplinary and Grievance Hearings: A reminder and a warning

Appeals against Dismissal

A basic requirement of a fair dismissal is to allow the employee the right of appeal. Failure to do so can make an otherwise fair dismissal unfair. However, if done properly, it can be an opportunity for the employer to turn what otherwise might have been unfair into a fair dismissal.

A dismissal may be alleged to be unfair because the employer did not carry out a full investigation, or the employee was not provided with the evidence in advance, or the employee was not informed before the hearing that they could be dismissed, or that the person who heard the disciplinary hearing was biased (e.g. because they had been involved in the investigation).

When an employee appeals all these matters can be “cured” if the employer carries out further investigations (if the previous one was insufficient), considers all evidence in advance of the appeal hearing, and if the person hearing the appeal has had no previous involvement in the process. As long as the appeal is a proper rehearing then it could render a previously unfair hearing fair.

Appeals in a Flexible Working Request

The recent case of Little v Richmond Pharmacology Ltd extended the above principle to a discrimination claim. The employee had been refused a request for flexible working. She appealed but resigned before the appeal hearing. At the appeal the employer offered her the opportunity to return to work on the flexible hours she requested for a 3-month trial period. She refused and brought a claim of indirect discrimination. The Tribunal and Appeal Tribunal found that as the employer had reversed the refusal of flexible working there had been no indirect discrimination.

Grievance Appeals

In the recent case of Blackburn v Aldi Stores, the employer’s Regional Managing Director heard a grievance and rejected it. When the employee appealed, the same manager dealt with the appeal. The Tribunal held that the failure to offer a full appeal when a grievance has been rejected could amount to a breach of contract or breach of the “implied duty of trust and confidence” which could form the basis of a successful claim for “constructive” unfair dismissal.

The lesson is to always offer an appeal and ensure that it is dealt with properly.  Although a claim will usually be based around the subject matter of a grievance, an inadequate appeal process could certainly strengthen the employee’s claim.

Thursday 5 December 2013

Changes to the State Pension


The government has recently proposed to introduce a single-tier State Pension from April 2016 and raise the State Pension age from 66 to 67 gradually between 2026 and 2028.

Any changes will have to be agreed by parliament before they become law.

Any current pensions and people reaching State Pension age before the introduction of the changes will continue to receive their State Pension in line with existing rules.

To put it simply, it is proposed that people born on or after the 6th March 1961 will reach State Pension age when they are 67 or older.

Use the handy calculator here to find out your State Pension age under the current law.

Friday 15 November 2013

A new lease of life for property values

Throughout the UK, short residential leases are a ticking time bomb for unsuspecting homeowners, potentially wiping tens of thousands of pounds from property values. Yet, this problem can easily be avoided by simply extending the lease before it falls under 80 years - a legal process that, if done correctly, can pay for itself many times over when it's time to sell up.

Robert Plant advises that 'Under the 1993 Leasehold Reform Act, qualifying tenants have the statutory right to extend the lease on their property by 90 years, plus the present unexpired term. So, for a lease with 90 years left, this would be extended to 180 years, and all at a peppercorn rent - a small token payment used to fulfil the requirements of a legal contract.'

Why act before the lease reaches 80 years? For the extension of any lease below this length, legislation entitles the freeholder to 50% of the marriage value. This is the increase in the property's value on completion of the lease extension.

Naturally, the shorter the lease becomes, the bigger the rise in value, with the leaseholder facing a much larger bill to extend it. For any lease greater than 80 years, the marriage value is deemed to be nil.

In a turbulent economic climate, therefore, it is crucial for leaseholders to act now to protect their investment, rather than later. It is a point highlighted by the plight faced by many leaseholders in the process of moving home. Sensing their desperation to sell, unscrupulous freeholders have been known to delay the process and even enter into costly private arrangements knowing they have the leaseholder over the proverbial barrel.

The lease extension process begins with a notice served to the landlord and normally takes around six months. In reality, the experience should be hassle-free for the leaseholder, providing everything is done correctly.

Lease extension is a specialised area of law and very time sensitive. Any delays or errors could cost anywhere between a few hundred to thousands of pounds, with the leaseholder forced to wait 12 months before the process can be restarted. Therefore, choosing the right solicitor is an absolute must.

Essex Minerals Plan – Update – 15th November 2013

The Essex Replacement Minerals Local Plan was submitted to the Secretary of State for independent examination by Essex County Council in July this year.

Brian Sims from the Planning Inspectorate was subsequently appointed as the Independent Inspector.

The Hearing sessions for the examination were held at Anglia Ruskin University in Chelmsford and concluded yesterday.  The Inspector's report is due towards the end of January 2014.

Tolhurst Fisher has a number of clients with various interests in the Plan and we will be looking closely at the report when it appears.

 

Reinforcing a culture of corporate rescue

With potential claims from legacy employees often regarded as a hindrance to corporate rescues, the Court of Appeal’s judgement in Crystal Palace FC Ltd v Kavanagh and others should offer potential buyers some assurance.

Provided that pre-sale staff dismissals were to enable the company in administration to continue to trade, the court found that the business could be sold without passing TUPE liability to the purchaser.

Ultimately the case before the court was decided on its unique facts, but the decision is an important development since it widens the previous approach in dealing with actions of the administrator in preparation for an eventual sale.

Staffing issues are one of the many pitfalls in acquiring a business in administration, and with the potential for severe consequences in discovering problems too late, it pays to seek specialist advice early on.

For more information about business acquisitions please contact our commercial department by emailing commercial@tolhurstfisher.com for further information.

Tuesday 29 October 2013

Employment Law Webinar

Tolhurst Fisher are delighted to bring to you the first in our new series of bite sized webinars, which are designed to bring you interesting and informative legal updates without the need for you to attend a seminar.

Our first webinar is by Marsha Robinson, who is a solicitor in our employment law department.  Marsha is discussing the recent changes to employment law that will impact you and your business and she also introduces you to our new Employer Protect Scheme.



The whole webinar is about 7 minutes, so maybe go and get yourself a cup of coffee first!

To view on YouTube use the link below:
http://youtu.be/SPjbmXX1YFI

Thursday 24 October 2013

Changes to the National Minimum Wage

As of the 1st October 2013 the changes to the National Minimum Wage will be as follows:

£6.31 for those 21 years and over;

£5.03 for those aged 18-20 years;

£3.72 for those above school leaving age but under 18;

£2.68 for apprentices.

For further information regarding employment matters please contact our employment team by email on employment@tolhurstfisher.com.

Improving Director Effectiveness – ICSA Meeting October 2013

With increasing demands on director’s time, electronic board portals have rapidly become a popular way to increase board effectiveness, according to Ian Beth of Computershare Governance Services.

Addressing the quarterly meeting of ICSA’s Essex branch at Tolhurst Fisher’s dedicated commercial centre in Chelmsford, Ian explained the many benefits such technology brings. 




Recent survey evidence has shown that an average board pack weighs in at almost 200 pages, with some topping 1,000 pages.  Since a director spends an average of just 3 hours digesting each pack, more efficient use of this time can pay huge dividends.

Whether this is through electronic signatures, simple cross referencing, increased security, or just easing the administrative burden through a better process, the advantages are clear to see.  Ultimately, such benefits can only increase board effectiveness.

Commenting on the issues raised, Edward Garston, Corporate Solicitor at Tolhurst Fisher LLP observed “For a busy board of directors, any benefits that can be achieved through technology must be welcomed”.

For more information on board procedures please contact our commercial department by emailing commercial@tolhurstfisher.com for further information.

Wednesday 23 October 2013

Naming your Company to become easier

As part of the government’s “Red Tape Challenge”, a consultation by the Department for Business, Innovation & Skills has concluded that the list of restricted names should be reduced.

Often discovered only at the last moment in registering a new company or changing a company name, regulations dictate that certain words or expressions cannot be used as part of a company name if they are “sensitive”.

The proposal is for around a third of such sensitive words to be permitted for use.

Although you will still be restricted from using a national word, such as British or Welsh, or words indicating some form of authority, such as Accredited or Regulator, the suggestion is that words including “European” or “Watchdog” may be used.

Draft regulations are due shortly.

For further guidance on forming a new company, what to call it, and how to protect its name please contact our commercial department by emailing commercial@tolhurstfisher.com for further information.

Thursday 17 October 2013

Beer Festival 2013

On the 1st and 2nd of October we held our annual beer festival at The Orange Tree in Chelmsford. It was well attended from professionals across the county and we have had some great feedback.

We also held a raffle at the two day event in support of the South Woodham Ferrer Guides and raised £355. This money will be changed into B&Q vouchers and used to decorate their new HQ.

At the event guests are invited to vote for and comment on their favourite drink. The person behind the best comment then wins their own Tolhurst Fisher LLP Tankard. Both winners are as below, congratulations!



We would like to extend a big thank you to the Mighty Oak brewery in Maldon for donating a Minipin of Beer towards the raffle.

Friday 11 October 2013

Help to Buy Guide

Help to Buy encompasses two schemes. The first is an equity loan, where the Government will loan up to 20% of the value of a new build home to anyone with a minimum of 5% deposit.

The equity loan scheme is interest-free for the first five years, after which there will be a charge of 1.75% (which will rise in line with the Retail Price Index) plus 1%. The loan can be repaid in full without penalty any time within 25 years or on the sale of the property.

The second, which the Government launched on the 8th October 2013, is a mortgage guarantee which will encourage mortgage lenders to lend to people with small deposits. This will be available from January 2014 and can be used to purchase new build or existing properties.

The mortgage guarantee is made to the lender by the Government and means in the event of repossession the Government will cover some of the lender’s losses.

In order to qualify, applicants must pass their lender’s credit and affordability checks and also meet appropriate criteria to ensure that they can pay back the loan.

Help to Buy cannot be used for properties in which the applicant will not be living, such as buy-to-let, nor is it open to corporate buyers.

Buying a home is one of the biggest purchases an individual can make, making good legal advice and support essential. Our Step by Step Guide to the Conveyancing Process may help explain the transaction.

Contact us today for a quote or to find out more: conveyancing@tolhurstfisher.com

Friday 27 September 2013

Businesses cheer tighter late payment rules

An update on our previous article: "Legal Basis for Prompt Payments"


Further tinkering by the BIS has addressed a technical problem with the Late Payment of Commercial Debts Regulations 2013.

With the catchy name of the “Late Payment of Commercial Debts (No. 2) Regulations 2013”, the amendment slashes the maximum period before statutory interest starts to run by 30 days, to 60 days or 90 days after contractual performance.

Throughout the recession late invoice payment has strained the cashflow for many businesses, and although awareness of the rules remains low, they have provided a legislative basis for speeding up debt collection.

This further clarification has helped, although since the changes do not have retrospective effect, ambiguity about the position with contracts formed before May 2013 is inevitable.

If you are struggling to collect payments, or would like advice on your payment terms, contact Tolhurst Fisher’s commercial department on 01245 216100.

Wednesday 18 September 2013

Christchurch Preschool Sponsorship


Tolhurst Fisher recently agreed to sponsor a bouncy castle for the Christchurch Preschool. Michelle Waterman tells us more:

"Tolhurst Fisher very kindly agreed to sponsor the bouncy castle at my daughter’s preschool welcome BBQ on Sunday.

I am on the committee for the preschool and this was our first ever Welcome to New Parents BBQ for Christchurch Preschool (a non-profit making organisation that is managed by the staff and a committee of parents) in Colchester, and it was a great success. 

The weather was kind and we even managed to raise funds, thanks to all the parents who purchased our hotdogs and homemade cakes and to the kind sponsorship of Tolhurst Fisher towards the hire of the bouncy castle."


Monday 9 September 2013

Employee Shareholder Scheme

September has seen the introduction of the controversial Employee Shareholder Scheme, whereby employers can offer no less than £2,000 in shares to employees in return for them giving up certain employment rights.  It is intended to be a separate form of employment status. 

The Employee Shareholder will waive the right to claim unfair dismissal (apart from automatically unfair dismissal or where it is based on discriminatory grounds or in relation to health and safety), a statutory redundancy payment and certain other statutory rights.

It is of course a little more complicated than this so if you would like more information please contact Marsha Robinson on 01245 216114.

Wednesday 28 August 2013

Married Couples and Rental Properties – The Importance of Getting It Right


A Court has recently decided that a married couple’s agreement to pay the wife the rental income from a jointly owned property did not overcome the operation of Section 836 of the Income Tax Act 2007. As a result, the husband was assessed on 50% of the rental income for income tax purposes even though they had agreed that the wife should receive all of the rent into her bank account.

Tuesday 27 August 2013

Employment Tribunal Changes

Significant changes were brought into effect on 29 July in relation to Employment Tribunal claims and employment law, which include the following:

  1. A new set of Employment Tribunal rules
  2. The introduction of fees charged for bringing an Employment Tribunal claim
  3. Cap on compensatory award in Employment Tribunal
  4. The ability to have confidential termination negotiations with employees.
The general opinion is that these changes are broadly in favour of the employer and will potentially reduce the number of new claims in the Tribunal.

Friday 23 August 2013

Country Shows 2013

This year we were pleased to attend two local country shows: the Tendring Show and the Essex Young Farmers Country Show.

Luckily the weather was kind to us at both events - especially the Tendring Show where temperatures topped 30 degrees - so we avoided having to don our wellies.

We enjoyed speaking to clients and contacts, both new and old, at both events and hope they enjoyed the cupcakes that were on offer.

Did you spot us at either show?

Friday 12 July 2013

A Knotty Problem

The Environment Agency has updated its Voluntary Code of Practice for developers “managing Japanese Knotweed on development sites” changes amend the original 2006 code to correct subsequent changes in waste and environmental legislation.

Friday 28 June 2013

Step By Step Guide to the Conveyancing Process

We have often been asked at the outset of a transaction for details on what is involved with the conveyancing process to give an idea of how long the transaction will take. Whilst we cannot be specific of time-scales the average conveyancing transaction takes about 4 - 6 weeks. The following guide will hopefully give you an idea of the stages which are involved:


Website Imagery

In December 2012 we commissioned local Southend-on-Sea photographic artist, Peter Bolton, to photograph landmarks across Essex for use on our website and throughout our marketing material.

We are really pleased with the results and think the images look fantastic. We wanted to use a variety of images from across the county to reflect our own geographical spread.

Locations of images include: The Garrison, Thorpe Bay, Old Leigh, The Kursaal, Southend Central Railway Station, Chelmsford Railway Station, The Tolhurst Fisher offices, Chelmsford and Southend High Streets, City Beach, Leigh Broadway, Two Tree Island, Billericay, Bradwell, Hanningfield and many other.
 
 

Monday 10 June 2013

ICSA June Meeting

Tolhurst Fisher was pleased to host the June meeting of the Essex Branch of ICSA, the Institute of Chartered Secretaries and Administrators, at its Chelmsford office.

Audience members included representatives from large companies with significant overseas interests, freelance company secretaries, SME’s, and those from the third and public sectors. The event focused on speakers Cllr Michael White and Kirsty Semple sharing their experiences and thoughts on corporate governance in the public and community sectors.

Kirsty Semple, Chartered Secretary


Friday 7 June 2013

Apprenticeships – The Employer Benefits

With the increase in university fees and the rising levels of unemployment, many young people are looking at the other options available to them having left school or college. An Apprenticeship is an option that is increasing in popularity. But what benefits are there to you as an employer?

Apprenticeships are work-based training programmes designed around the needs of employers, which lead to nationally recognised qualifications. There are three levels of apprenticeship available and there are more than 250 different types of apprenticeship. While government funding is available to apprentices between the ages of 16 and 24 in various different percentages, as the employer you will be responsible for the apprentice’s wages and on the job training. Since October 2010 there has been a national minimum wage for all apprentices, which is currently set at £2.65 per hour. Employers should be aware that “per hour” includes all time spent working and also all time spent training that forms part of the apprenticeship.

Friday 31 May 2013

Major Shake Up of Planning Rules Comes Into Effect

On the 30 May 2013 extensive changes to permitted development rights including measures allowing offices to be converted into homes without planning permission were introduced.

The changes to the General Permitted Development Order also included a significant increase in the limits of household extensions and rules to enable the conversion of existing buildings including offices, hotels, care homes, cinemas and concert halls to state-funded schools without the requirement of planning consent.

Prior to the introduction of the new rules the communities secretary Eric Pickles commented that they would help “put to good use” the “many disused existing buildings we have”.

Tuesday 21 May 2013

Paul Carpenter Wins Golf Trophy

Paul Carpenter won a prize at his recent golf day - clearly not for the best dressed golfer!

Paul Carpenter Receiving Golf Trophy

Wednesday 1 May 2013

Changes at Tolhurst Fisher

Tolhurst Fisher is pleased to be able to announce two significant changes to the commercial property department at our Chelmsford office.

Mark Cornelius has joined us as of the 1st May from another firm and will be working alongside Caroline Homewood and the rest of the commercial team.

We are also delighted to announce that Paul Carpenter is now a partner in the commercial property department. He will be continuing his great work doing a mix of high value residential, property development and general commercial.

Clearly the last few years have been difficult for law firms with the state of the wider economy, but we are hugely optimistic about the future of this firm. These two appointments are representative of our commitment to having the best people working in the best firm in the county and taking advantage of that as the economy improves.

Tuesday 2 April 2013

Clarity for payment surcharges

Often added right at the end of a transaction, excessive “Payment Surcharges” for using certain payment methods are banned from 6th April 2013.

The Consumer Protection (Payment Surcharges) Regulations 2012 prohibit traders from charging consumers more than the costs they face for accepting a given type of payment, whether the transaction is concluded face to face, by telephone, or online. So although a surcharge is still permitted if the trader itself must pay that cost, an “excessive” one is not.

Friday 1 March 2013

Legal basis for prompt payments

If cashflow is the lifeblood of commerce then The Late Payment of Commercial Debts Regulations offers a much welcome shot in the arm.

From 16 March 2013, if payment for goods or services has not been made within 30 days, late payment interest begins to accumulate. Helpfully this applies to both in the private sector and with public authorities.

The start date for the 30 day period is the latest of the date of receipt of the invoice, the delivery date for goods or services, and verification or acceptance of the goods or services.

Tuesday 19 February 2013

The Growing Popularity of Lasting Powers of Attorney

We are seeing an unprecedented demand for LPAs from existing and new clients. Many are also being registered with the Court straight away so all the legalities are sorted out to avoid delays later. Private Client partner Mark Francis puts this down to increasing media interest and general awareness of the risk of loss of capacity in later years. “We all know about the importance of making a will but more and more people are asking me to draw up LPAs to ensure their trusted family and friends can look after financial and healthcare needs if they become unwell” commented Mark.

Monday 4 February 2013

Compensation in the Employment Tribunals – a new limit

Every year the limit for compensation awards in the tribunal is reviewed, usually increasing. From 1 February 2013 the maximum compensatory award for unfair dismissal will rise from £72,300 to £74,200.

This sounds like (and indeed is) a lot of money. However, this large figure probably gives the wrong idea to both Claimants and employers defending claims. Claimants see this figure and often have unrealistic expectations of what can be achieved in Tribunal. Equally employers are often very concerned that if they receive a claim they will end up paying a huge amount in compensation to the employee if they lose.

Friday 25 January 2013

2013: Beware if selling to consumers

If your business sells to consumers, there have been some key changes in 2013.

Tighter rules on payment surcharges took hold from April. Following pressure from consumer groups and reflecting EU legislation, charges for using credit or debit cards in excess of those incurred will be banned in all consumer contracts for goods, services, and digital content. But some limited exceptions will survive, and businesses with less than 10 employees will have longer to comply.