Friday, July 31st, 2009
The need for couples to communicate and behave reasonably when their relationship breaks down was highlighted in a recent case before the Court of Appeal.
It involved a cohabiting couple who had to settle various financial matters when their relationship ended. The man issued proceedings for the repayment of loans and possession of some of their property. The woman disputed the loans and made a counter claim that the property was owned equally.
She then tried to make the process easier by asking her former partner to take part in mediation and alternative dispute resolution procedures. These procedures are designed to help couples reach amicable settlements and so avoid the cost and stress of going to court.
However, her former partner refused several offers to take part. The woman then made an offer that the property should be split 55% - 45% in his favour but that too was refused.
The matter was then scheduled to go to court but on the day of the hearing, her former partner decided to abandon his claim. An order was made on the basis that the property was owned equally and his claim in relation to loans was dismissed.
It meant that he ended up accepting a worse settlement than the one he had been offered when his former partner was trying to get him to take part in mediation sessions. Now he is even more out of pocket because the Court of Appeal has ruled that he should pay his former partner’s costs.
The court ordered him to do so because he continued with the proceedings right up to the day of the hearing and then abandoned his claim at the last moment.
It is not uncommon for attitudes between couples to harden once their relationship breaks down. However, it is always better for both sides to get good legal advice and then try to behave reasonably to make the process as easy and as fair as possible. Good solicitors will be able to provide various methods to help arrive at an amicable settlement which in most cases will prevent the need to take matters all the way to court.
Please contact us if you would like more information.
Wednesday, July 29th, 2009
A gay postman who was called effeminate, girly and bitchy by his manager at the Royal Mail has been awarded £2,400 in compensation.
Liam Black, who is 22, was so upset by the remarks that he signed off work suffering from stress and then later resigned. He brought a claim that he had been discriminated against because of his sexuality.
The Employment Tribunal at Ashford in Kent heard that the comments were made by the line manager at a meeting called to discuss a dispute between Mr Black and a colleague. Mr Black did not attend the meeting but later obtained a transcript of what had been said in his absence.
That’s when he discovered the remarks which he said he found shocking and offensive.
The tribunal said the manager had used “stereotypical language” which was derogatory and which had discriminated against Mr Black on grounds of his sexual orientation. In its ruling, the panel said: “Each of the terms ‘effeminate’, ‘girly’ and bitchy’ are, when used in respect of a man, a direct reference to that man having female characteristics.
“In the context of this case where they are used concerning a man who is known to be homosexual, they are quite clearly derogatory in nature.”
The panel said it was satisfied that the manager was not homophobic but his comments were still “influenced, quite unconsciously, by his knowledge that Mr Black was homosexual”. It added: “We do not think it likely that he would use those three words together in the description of a heterosexual man.”
Mr Black was awarded £2,000 for hurt feelings and a further £400 because the employers failed to follow the correct procedures following his complaint.
Please contact us if you would like information about making a claim for discrimination in the workplace.
Monday, July 27th, 2009
Four children who were cut out of their mother’s will because she suffered from delusions which poisoned her mind against them have won the right to inherit her estate.
The woman owned a farm which the children expected to be passed on to them when she died. However, she made a will leaving most of her estate to a charity.
The children challenged the will on the basis that their mother had lacked testamentary capacity – that is, the necessary mental capacity and understanding required to make a will valid.
They said their mother suffered from a mental disorder which caused delusions and led her to falsely believe that they had done nothing to help her and that she had not assured them they would inherit the farm. They submitted that, far from behaving improperly towards her, they had supported her and she had been quite dependant on them.
They were able to provide an expert who attested that the mother had been suffering from a paranoid personality disorder.
The court held that the mother had been suffering from an abnormal paranoid disability. She had probably believed that the allegations she had made about her children were true. However, this was because her natural maternal instincts and affections had been perverted by her mental illness. The disorder caused delusions which made her cut them out of her will.
It followed that she lacked testamentary capacity and there was a strong moral obligation to leave the estate to the children. The grant of probate – the court order that confirms that a will is valid – was revoked and the children will now be able to inherit.
Please contact us if you would like more information about wills and probate.
Saturday, July 25th, 2009
Home Information Packs (HIPs) have proved controversial since they were first introduced nearly two years ago.
Some have questioned their value and others have been confused as to whether or not they are needed for different kinds of homes – possibly because they were introduced in stages depending on the size of the property being sold.
Now the Department for Communities and Local Government has published an amended set of regulations and procedural guidance on HIPs. The document is aimed mainly at property professionals but contains information that will be useful to anyone wishing to buy or sell a home.
The regulations confirm that a seller must have a HIP available as soon as a property is put on the market. The HIP must have an index and include various documents such as an Energy Performance Certificate - which grades the property’s energy efficiency - the terms of sale, proof of title and boundaries from the Land Registry, and the results of local searches.
With the property market showing some tentative signs of improving following the problems of the last few years, many people may now be thinking of putting their home up for sale. If so, they should ensure that they have a HIP in place before the property is put on the market.
Please contact us if you would like more information about HIPs or any aspect of buying and selling a property.
Thursday, July 23rd, 2009
A group of men in low paid jobs have won an equal pay claim in a landmark ruling.
The case involved 300 men working in various capacities such as care workers, caretakers and leisure attendants for local authorities in the North East. They made a claim saying they were entitled to the same bonuses paid to male staff in better paid jobs such as gardeners.
They made their claim at the same time as some female workers who also believed that the bonuses were discriminatory. The women succeeded but the men’s claim was rejected by an employment tribunal.
However, that decision has now been reversed by the Employment Appeal Tribunal.
The president of the tribunal, Mr Justice Underhill, said: “It would be surprising and unsatisfactory if the Equal Pay Act offered no remedy to men in a situation like the present.
“The case where men and women do the same job but receive different rates of pay is the paradigm of the kind of situation which the Act was intended to prevent: how would it seem if – unusually, but not impossibly – the roles were reversed and the ‘piggyback’ claimants were not men but women?”
It’s estimated that another 12,000 men could now bring successful claims because of the ruling.
Please contact us if you would like more information about employment law.
Tuesday, July 21st, 2009
The Government plans to ban “irresponsible drinks promotions” and introduce a set of tough new measures to tackle the problem of alcohol-related crime and disorder.
There will be a mandatory code outlawing promotions such as “all you can drink for £10” and practices such as speed drinking competitions. The code will cover pubs, clubs, off-licences and supermarkets.
The proposals set out a two-tiered approach. There will be a mandatory code for alcohol retailers to ensure good practice and local authorities will have new discretionary powers to tackle premises which allow irresponsible drinking that could lead to crime and disorder.
Licensees who breach the mandatory code or local authority conditions could lose their licence and face a £20,000 fine and/or six months imprisonment.
As well as banning irresponsible promotions, the code will require pubs and clubs to offer spirits in both single and double measures so customers have a choice. They must also serve wine in small as well as large glasses.
Retailers will have to display information about the alcohol unit content of drinks. In addition, supermarkets and convenience stores will need to provide details about the health impact of alcohol.
The Government has decided not to set minimum unit prices as it believes this would unfairly punish the majority of people who drink moderately and sensibly.
There will now be a public consultation allowing the public and interested parties to express their views before the measures in the code are finalised.
Monday, July 20th, 2009
ew safeguards have been introduced to protect vulnerable people from abuse in care homes and hospitals.
The Mental Capacity Act Deprivation of Liberty Safeguards came into effect on 1st April. The legislation means that a care home or hospital must apply for permission if it believes that it needs to deprive patients of their liberty for their own wellbeing and safety.
Applications have to be made to the local health trust or council. Trained assessors will then ensure that certain conditions are met before permission is granted. The assessors will need to be satisfied that the deprivation of liberty is in the person’s best interests to protect them from harm and that it is a reasonable response to the likelihood of the person suffering harm.
The person must be over 18 and have a mental disorder but must not be subject to a requirement of the Mental Health Act. The person must also lack the capacity to consent to their own care or treatment.
However, authorisation must not conflict with an advance decision made by the person before they lost capacity, or a valid decision made on the person’s behalf by the donee of a lasting power of attorney.
The Department of Health estimates that there may be about 21,000 applications in the first year with approximately 25% being authorised.
Care Services Minister Phil Hope said: “Vulnerable people will now have rights where previously they had none. Before this law came in, care homes or hospitals were able to lock someone up or sedate them without their consent, without that person having any kind of right to appeal or protest.
“This law will only be used as a last resort where it is necessary to keep a person safe and all other options have been exhausted. Protective care must be the exception and not the rule.”
The new rules provide welcome safeguards but it is also possible for people to take significant steps towards providing for their future care themselves by registering a Lasting Power of Attorney (LPA).
LPAs enable you to nominate a person who can make decisions on your behalf should your health fail and you are unable to make such decisions yourself. They allow you to set out what care and health treatment you should receive and, as the new safeguards now stipulate, a care home or hospital would not be able to contradict decisions a person made about their future care before they lost mental capacity.
LPAs also allow you to nominate someone to make decisions on your behalf in relation to your financial affairs.
Please contact us if you would like more information about LPAs or any of the issues raised in this article.
Sunday, July 19th, 2009
As cash flow problems continue to threaten the stability of many firms, eleven major companies have agreed to sign up to the Government’s Prompt Payment Code.
They include high profile names such as Barclays, Sony UK and B&Q. The pledge means they agree to pay their suppliers on time within the terms agreed at the outset of the contract.
They also promise not to change the payment terms retrospectively.
Explaining the need for the code, the Business Minister Shriti Vadera said: “Late payment can be the final straw for small businesses in the current climate so the commitment by major companies heading up supply chains to pay on time is a win for all businesses.”
The move is a step in the right direction but it still leaves thousands of firms struggling to cope with the problem of late payments. Firms in this situation should seek legal advice to help them recover debts as quickly as possible.
A solicitor can draft a letter requesting payment and outlining what action may be taken if the debt is not settled. For example, under the Late Payment of Commercial Debts (Interest) Act 1998, firms are allowed to charge interest on overdue invoices. This punitive charge is currently 8% above base rate. Firms are also entitled to levy a statutory late payment fee of between £40 and £100 depending on the size of the debt.
A solicitor’s letter is often enough to ensure payment because most companies will settle immediately when they see you are serious about exercising your rights. For more entrenched cases, it may be necessary to initiate legal proceedings but most companies will still settle before the matter gets to court.
Please contact us if you would like more information about recovering debts.
Friday, July 17th, 2009
Workers who have been employed on an unbroken series of similar contracts with the same employer can now bring equal pay claims relating to all those contracts and not just the most recent one.
That was the ruling by the Court of Appeal in a case involving Cumbria County Council and some of its women employees. The women had worked for the council for several years but changes to their working practices had required changes to their employment contracts.
When they wanted to assert their right to equal pay, they found they were subject to a six-month time limit for bringing claims. The council argued that this meant they could only make claims in relation to their period of employment under their current contract.
The Equality and Human Rights Commission took up the case and submitted that the six-month time limit should cover previous contracts with the same employer when the variations to those contracts still implied a “stable employment relationship”.
The Court of Appeal has now accepted those arguments and ruled in favour of the women employees. In giving his decision, Lord Justice Mummery said various contracts covering substantially the same work should be regarded as stable employment. He added that the precedent being set by the court’s decision would be likely to open the door for further equal pay claims.
Please contact us if you would like more information about this or any aspect of employment law.
Thursday, July 16th, 2009
A car repair company has won its case in the Court of Appeal to stop a former franchisee operating a rival business in breach of a restrictive covenant.
The company offered franchises allowing businesses to use its name, products and expertise in specified areas. The agreements contained a restrictive covenant which prevented anyone who terminated the franchise from setting up a rival business in the same area for a period of 12 months.
The franchisee in this case decided not to renew his franchise but then continued operating a car repair business on the same premises, although he didn’t use the franchise company’s name or any of its products.
The company took legal action but the judge held that the restrictive covenant only prevented the former franchisee from competing once a new franchisee took over the area. If there was no immediate successor then he was entitled to continue working.
However, the Court of Appeal has now overturned that ruling. It held that the purpose of the covenant was to protect goodwill and it made no sense to deny that protection at the time it was needed most. The former franchisee would have built up his own goodwill while trading under the company’s banner and so would pose a threat to the company if he was allowed to continue trading.
The restrictive covenant was needed to allow the franchise company time to find a new franchisee to cover the area.
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