Wednesday, December 31st, 2008
Family courts now have new powers to help resolve disputes between estranged parents over contact arrangements for their children.
The new measures are part of the Children and Adoption Act 2006 and are effective from 8th December 2008. They’re designed to help resolve conflicts between parents over such things as who the child should see, how often and under what conditions.
The changes mean that courts now have the power to direct a parent in a dispute to undertake a contact activity. They will also be able to attach an activity condition to contact orders.
If one of the parents suffers a financial loss from the other’s failure to comply with a contact order then the court will be able to award compensation. The court will also be able to impose an unpaid work requirement on the person who breaches the contact order.
The Government says the background to the changes is the principle that the “well-being and interests of the child are of paramount importance” rather than the personal interests of either parent.
Please contact Marie Stock if you would like more information about the new powers or any aspect of family law.
Tuesday, December 30th, 2008
The UK Government has begun a consultation process on EU plans to develop a uniform set of consumer rights across Europe.
The Consumer Rights Directive is intended to harmonise rules in several important areas such as protection against unfair contract terms and rules on faulty goods. There will also be new rules on internet shopping and door-step selling.
The proposed measures include a 14-day cooling off period for goods bought online or on the doorstep and more consistent protection when goods are not delivered.
Another important proposal concerns a consumer’s rights when goods are found to be faulty. At present in the UK, the customer has the right to reject the faulty goods and ask for a refund. The European Commission is proposing a different system which would allow the trader to offer to repair or replace the faulty item. A refund would only be obligatory in a more limited set of circumstances.
The consultation period ends on 2nd February.
Meanwhile, the Department for Business Enterprise and Regulatory Reform has asked the Law Commission to consider legal remedies for consumers who discover that an item they buy doesn’t conform to contract.
We shall keep clients informed of developments.
Tuesday, December 30th, 2008
A woman has been awarded nearly £4,000 compensation after she suffered burns to her back during a massage therapy at a beauty salon.
The court heard she still had a scar four years after the treatment.
The woman, who was 46 when the incident happened, had gone to the salon for massage therapy that involved her lying on hot stones. Following the treatment, she was aware of a tingling sensation on her back and then discovered red areas and blisters on her skin.
The therapist apologised and applied a cold flannel to the affected areas. The woman’s pain and discomfort increased when she went home and her GP later confirmed that she had suffered burns to her back.
The woman, who is now aged 50, experienced pain and discomfort for about 15 months after the therapy. She became very sensitive about the appearance of a scar that had formed and worried about it showing through light clothing. She felt restricted in what she could wear and was unable to go swimming because she was self-conscious about her appearance.
The salon disputed liability and negligence. It claimed the woman had extra sensitive skin and had failed to fill out its questionnaire correctly.
The court ruled in the woman’s favour and awarded her damages of £3,863 to compensate for her pain, suffering and loss of amenity together with her care costs and other expenses.
If you are unfortunate enough to have suffered injury contact Steven Kinch.
Monday, December 29th, 2008
The Court of Appeal is to rule on whether a heterosexual father of three who was subjected to persistent homophobic banter from his work colleagues can bring a claim of harassment under anti-discrimination laws.
Stephen English, who is married and has three children, worked as a salesman for a company in Portsmouth. He claimed that his work colleagues started calling him names and making homophobic comments to him after they found out that he had gone to a public school and that he lived in Brighton.
Mr English found the taunting so distressing that he felt he had to give up his job. He made a complaint of harassment under the Employment Equality (Sexual Orientation) Regulations 2003 but the tribunal rejected his claim because he was not actually gay and his work colleagues did not believe him to be gay even though they taunted him.
This meant he was not protected by the regulations because the taunting was not due to his sexual orientation but rather because his colleagues were reacting to stereotypical factors such as his having attended a public school and the fact that he lived in Brighton.
That ruling was upheld by the Employment Appeals Tribunal. However, Mr English’s case has now been taken up by the Equality and Human Rights Commission which believes the law needs to be clarified.
The Court of Appeal has now heard the case and is expected to deliver its ruling within the next few months. A spokesman for the Equality and Human Rights Commission said a positive ruling would help people who suffer harassment based on stereotypes.
John Wadham, the Commission’s Group Legal Director, said: “Sustained homophobic bullying is unacceptable in the workplace. The fact that Stephen English’s colleagues knew he wasn’t gay doesn’t excuse their behaviour – the harassment he suffered was distressing.
“By supporting Mr English’s case, we hope to clarify the law to protect those who suffer sustained harassment based on old-fashioned stereotypes.”
This is an unusual case and the Appeal Court ruling should help clarify the protection offered by the law in these circumstances. However, the law already offers a great deal of protection against discrimination on several grounds including sex, age and race.
Please Kevin Smyth if you would like more information about anti-discrimination legislation or any aspect of employment law.
Monday, December 22nd, 2008
The number of divorces among the over sixties has reached a record high, according to figures released by the Office for National Statistics.
Ironically, it comes at a time when the overall number of divorces in the UK fell to its lowest level in 26 years.
There was a total of 128,534 divorces in 2007- a 3% drop compared with the 2006 total of 132,562 and the lowest figure since 1976.
The over-sixties was the only age group to see a rise in the figures. There were 13,678 divorces among the over sixties compared with 12,636 in 2006. The rising figures are thought to be related to changes in attitudes with many people not prepared to accept the prospect of remaining in an unhappy marriage into their sixties and seventies
While the over-sixties are the only group to show a rise in the figures, couples in their twenties are still the most likely to split up. They have the highest divorce rate across all the age groups at 26.8 per thousand.
Whatever a person’s age, divorce is always likely to be difficult and emotionally draining. The main issues are likely to be the division of assets and arrangements for the children. Finding a settlement that is acceptable to both parties can be difficult so couples should always ensure that they each get good legal advice.
A solicitor will be able to protect your interests and help you to make the right choices for yourself and your children. Some couples who find it hard to reach an amicable settlement may benefit from mediation. This is where a solicitor can act as broker to help couples overcome differences without having to resort to court action.
If agreement still proves impossible then court action may become necessary but this should generally be considered as a last resort.
Please Marie Stock if you would like more information about divorce issues.
Monday, December 22nd, 2008
A film company which caused damage to a person’s home during the course of its work has been ordered not only to cover the cost of repairs but also to pay him compensation for the inconvenience he suffered.
It must also pay the full cost of repairing a driveway even though the repair work would make the driveway better than it was before.
The company was using the homeowner’s property as a location and agreed to indemnify him for any damage caused by its staff while they were filming. It then turned out that damage was caused to both the inside and the outside of the property as well as to the driveway which needed to be resurfaced.
The home-owner submitted that he was entitled to compensation for his non-pecuniary loss – that is, loss of a non-financial nature – including the inconvenience caused to him by having to deal with the problem of rectifying the damage.
The company argued that the cost of repairing the drive should be reduced to reflect the fact that the repairs would put it in a better condition than it was before it was damaged.
The High Court, however, rejected this saying that as the driveway had been in good condition before the damage occurred, the company could not be given credit for any improvement that might result from carrying out the repair work.
The court also held that the inconvenience caused to the homeowner had interfered with his enjoyment of the property and it was right that he should be compensated for that as well as the inconvenience he would experience while the repairs were being carried out.
If you have a claim for damages talk to Steven Kinch.
Sunday, December 21st, 2008
The Employment Act 2008 has received the Royal Assent and will now sweep away the current dispute resolution procedures which have proved so unpopular with employers since they were introduced in 2004.
One of the main changes is that the dismissal of an employee will no longer be considered automatically unfair if there is a breach of procedure by the employer.
It will still be possible for a dismissal to be deemed unfair on procedural grounds but a tribunal will be able to adjust the level of compensation - or decline to award compensation at all - if it considers that the dismissal would have taken place anyway, even if the correct procedures had been followed.
Tribunals will also have the power to adjust awards by 25% if either side has failed to reasonably comply with a relevant code of practice. In unfair dismissal cases, this will be the Code of Practice on Disciplinary and Grievance Procedures drawn up by ACAS which is due to come into effect on 6th April 2009.
The Act gives tribunals the power to determine a case without a hearing if both parties put their consent in writing or if the respondent in the case fails to present a response.
Tribunals will also be able to award compensation for financial loss in certain cases, for example, where an employee is making a claim in relation to deductions from wages or redundancy payments.
The Act also introduces tougher sanctions against employers who fail to pay the National Minimum Wage (NMW).
There will be a new way of calculating arrears for workers who have been underpaid. The arrears will be calculated with reference to the NMW rate at the time when the underpayment is rectified as well as the rate at the time when the underpayment originally took place.
It means the employee could be repaid the arrears at a higher rate than he would have originally received had no underpayment taken place, assuming that the NMW has increased in the meantime. The formula for the calculation will take into account the length of time the arrears have been outstanding.
This is intended to compensate the employee for having to wait for full payment and also to act as a deterrent to employers.
Revenue and Customs officers will be given further powers to obtain information from employers relating to NMW payments and will be able to take documents away for copying. Enforcement officers will also be able to impose penalties for underpayment.
There will also be changes to the way criminal offences under the NMW Act are investigated and enforced with the most serious cases being tried in the Crown Court.
The new measures are due to come into effect in April 2009. Meanwhile, Business Secretary Peter Mandelson has launched a campaign to increase people’s awareness of the national minimum wage.
The “It’s Your Call” roadshow is visiting 28 towns and cities, offering people advice on their entitlements and how to make a complaint if they have been underpaid.
Lord Mandelson said: “Of course, most businesses treat staff fairly, but the small number who cheat their workers are flouting the law and undercutting honest competitors.
“Our changes will make sure everyone caught not paying their workers properly faces a stiff penalty - we are determined to ensure workers are paid fairly.”
The changes introduced in the Employment Act are important and are likely to affect all employers. Please Jonathan Friend if you would like more information.
Friday, December 19th, 2008
The homebuilding industry has agreed to draw up a code of conduct and a redress scheme for consumers following a report by the Office of Fair Trading (OFT) saying that the public needs more protection.
The report contained several positives for the industry saying that it was broadly competitive and that barriers to entering the market were quite low.
However, there were some issues affecting homebuyers which needed to be addressed.
These included faults in new homes, delays to moving in dates and “issues around the sales process including reservation fees, the clarity of information provided to homebuyers and potentially unfair terms and conditions in contracts”.
The industry has responded quickly to the findings by agreeing to form a representative body to draw up a code of conduct and consumer redress scheme. It’s hoped the measures will be in place by March 2010. If they are not, the OFT will recommend the introduction of a statutory redress mechanism which would be funded by an industry levy. It would be able to award compensation to homebuyers for delays, contract shortcomings or failings in the sales process.
The OFT Chief Executive John Fingleton, said: “We have found the homebuilding market to be generally competitive, with no evidence that individual homebuilders have the ability to restrict supply in order to inflate prices or to hoard land for anti-competitive reasons.
“However, we have concluded that homebuyers need more protection when buying a new home and we have worked hard with the industry to help it develop a new approach to self-regulation that will improve consumer protection.”
The voluntary code of conduct will be produced by the Cross Industry Steering Group which is made up of the Construction Employers Federation (NI), Council of Mortgage Lenders, Federation of Master Builders, Home Builders Association, Home Builders Federation, Homes for Scotland, LABC New Home Warranty, National House Building Council, Premier Guarantee, Retirement Housing Group and Zurich Building Guarantee.
For advice on property development contact Paul Slot.
Thursday, December 18th, 2008
Changes to the child maintenance system allowing all parents, including those receiving benefits, to agree their own arrangements have now come into force.
The changes have been introduced by the Child Maintenance and Enforcement Commission (CMEC) and became effective on 27th October.
It means that all parents with day-to-day care of their children can now choose the kind of child maintenance arrangement which best suits their particular circumstances. Until now, parents claiming benefits had to use the statutory service provided by the Child Support Agency (CSA).
Janet Paraskeva, the Chair of CMEC, said: “The Commission will have increased powers to take firm and effective enforcement action against those parents who fail to meet their responsibilities to their children.
“From 2009/10, to enable swifter enforcement the Commission will have the power to issue a liability order without the need to apply to the courts.
“Additional measures, also due to be introduced in 2009/10, include the power to deduct child maintenance debt directly from bank accounts; apply to the courts for travel disqualification and curfews; and recover debt from the estate of a deceased non-resident parent.”
The CSA is to continue operating the two current statutory maintenance schemes for the time being. Then, in 2011, CMEC will introduce a new scheme in which maintenance calculations will be based on the gross income rather than the net income of the parent without day-to-day care.
Tuesday, December 16th, 2008
The Government has announced new measures which it says will ease the administrative and financial burden on employers running their own pension schemes.
One of the key changes is that employers will be able to “self-certify that their pension scheme meets the quality standard based on the expected value of pension contributions to be made over the course of each coming year”.
However, employers will only be able to self-certify in this way if they are confident that all members of the scheme remain on course to receive the minimum level of pension savings.
Under the provisions of the new Pensions Bill, the required quality standard for money purchase schemes is that members receive contributions of 8% of qualifying earnings, of which 3% is contributed by the employer.
The rates for the General Levy and the PPF Administration Levy for 2009/10 are to be frozen at the 2008 level.
Rosie Winterton, the Minister of State for Pensions, said: “These reforms are based on a broad consensus among stakeholders. For our reforms to work it is vital that wherever we can we make them simple and straightforward for employers to implement. This will be to their benefit and their employees.
“The amendments will mean that employers who are confident their workers will receive the new minimum level over the year can certify to this extent as opposed to doing so for each individual over each pay period.
“By freezing the General and Administration levies at this year’s level I believe we are meeting the commitment we made last year to provide levy cost stability for pension schemes.”
The Government is now preparing draft regulations relating to the certification procedure. These will be issued for formal consultation in the next few months.
The new minimum level of pension saving is scheduled to come into force in 2012. We shall keep clients up to date with developments.
For more information contact Jonathan Friend.
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