Rogers and Norton: 2016

Phil Kerridge, Director at Rogers & Norton, was recently invited to take part in a lunch time seminar organised by HR GO Recruitment at the St Giles House Hotel, where he spoke to around 40 invited guests.

Phil talked about the perils and pitfalls of social media in the work place and highlighted it’s increase in popularity during the last 10 years. He also discussed the impact that it has had on companies and how it has altered the dynamics of the employee/employer relationship. He has personally seen a rise in issues caused by employees using social media and stressed that it is important that employers have a specific social media policy and that it is published and understood by the workforce.

“It is such a permanent and spontaneous form of communication, it is vital the employers ensure that their staff understands the full implications of actions they take”.

Wednesday, February 17, 2016

More success for Rogers and Norton's litigation team

Wednesday, February 17, 2016

Rogers and Norton’s litigation team have successfully secured an agreement for HMRC not to pursue notices issued under Paragraph 4 (2) a of Schedule 11 to the Value Added Tax Act 1994.

Peter Hastings comments “Notices were issued seeking security of £140,000 in relation to VAT, PAYE and NICS. We lodged an appeal to the First Tier Tax Tribunal for our client in which we challenged HMRC’s figures for VAT and also raised a number of novel legal arguments. HMRC has confirmed no further action will be taken on these notices and therefore the Appeal has been successful. As reported before, we have seen an increase in such notices being issued by HMRC, which are issued by HMRC if they consider that there is a risk to the Revenue. Non-compliance can also lead to prosecution and it is essential that a company and its officers who are served with such notices seek our advice immediately. This is another success that we have achieved, and which is excellent news for our client.”

The team is currently acting for businesses and individuals on a number of Border Force and HMRC matters including Appeals to the First Tier Tax Tribunal and also advising businesses on the Alcohol Wholesale Registration Scheme.

Tuesday, February 9, 2016

Employment Law Bulletin; February 2016

Welcome

February. The month of hearts, chocolates and helium balloons.
Even if your offices aren’t filled to the brim with roses, Valentine’s Day should remind every employer that love can – and often does – blossom at work. There’s no getting away from that, and it’s not necessarily a bad thing. Happiness breeds productivity.
But when two workers are in a relationship, there’s always potential for distraction, tension, jealousy, conflicts of interest. What if the relationship breaks down? You could be left with two employees who can no longer work together, or who draw you into a claim for bullying, harassment or constructive dismissal (for example).
The key point is: keep an eye on what’s happening around you and have policies that cover workplace relationships. That doesn’t mean a blanket ban on employees getting together. But it’s worth having some company rules that require couples to behave professionally and to understand what’s expected of them while they’re at work.

Monitoring employees’ messages Barbulescu v Romania

Mr Barbulescu was dismissed for breaching his employer’s rules on the personal use of the internet at work. On his work-related Yahoo account were found to be messages to his brother and fiancée about his health and sex life.
Was it right for the employer to have accessed those messages and for them to have been used in the disciplinary and subsequent court proceedings? Mr Barbulescu argued that there had been a breach of his right to respect for private life and correspondence.
The case went to the European Court of Human Rights which found against Mr Barbulescu. Although workers have a reasonable expectation of privacy at work, this isn’t absolute. The employer had a total ban on the private use of work equipment, and this was an important fact. It had accessed Mr Barbulescu’s Yahoo account (set up for work purposes) believing that it contained business-related messages only, and for the purpose of checking that Mr Barbulescu was fulfilling his work duties. This was a proportionate interference with his rights. The employer hadn’t accessed other data and documents stored on the computer, and the monitoring was therefore limited in scope and was proportionate.
So, far from living up to some of the headlines it generated, this case really came down to basic rules about monitoring and data protection. Yes, employers are entitled to check that their employees are fulfilling their working duties, but only if done properly and it’s proportionate. Making clear what your position is on private communications at work is the first step. Then it’s about having a clear monitoring policy that’s communicated and carried through.

Legal highs at work You probably have an alcohol and drugs policy. But does it cover ‘legal highs’?

These are substances that imitate the effects of illegal drugs. They’re generally stimulants, ‘downers’ or hallucinogens, and their use can have serious consequences. According to Acas, there were 129 reported deaths in England, Scotland and Wales in 2014 where new psychoactive substances were implicated.
If you haven’t yet read Acas’; guidance on dealing with legal highs at work, take a look here.
The broad advice is to: – deal with the use of legal highs in the same way as you would other drugs or alcohol, and build this into your policy. Remember that even though legal highs aren’t unlawful, you can still control their use in the same way as you ban or restrict the consumption of alcohol at work. – think about focusing in your policy on the effect the drugs have, rather than on the drugs themselves. That should make it easier to identify legal highs during drug testing; the compounds that make up legal highs are changing all the time. – educate staff on the signs of drug use – encourage users to get help.

Rights for zero hours workers

As of 11 January 2016, people working under zero hours contracts have better legal protection.
The Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 are now in force. They make it automatically unfair for an employer to dismiss a zero hours contract employee for failing to comply with an exclusivity clause, irrespective of their length of service. Workers (including employees) have the right to bring a claim if they have been subjected to a detriment for the same reason.
The Regulations follow last year’s banning of exclusivity clauses – those terms in zero hours contracts that tie workers into working only for that employer. Employers who still try to enforce this sort of arrangement could now find themselves on the end of a claim.

Instruction to speak English wasn’t discriminatory
Kelly v Covance Laboratories

It can take a brave employer to ban the use of certain languages in the workplace. But in this case, the employer was found to have a legitimate reason for insisting on English-only.
Russian-born Ms Kelly worked at a lab that carried out animal testing. After being told that she was not allowed to speak Russian at work, she brought claims including race discrimination against her employer.
The reason this claim failed at tribunal and at the Employment Appeal Tribunal (EAT) was because the instruction to not speak Russian at work was not about race or national origin; it was about security. Covance had been the subject of unpleasant attention from animal rights activists and was concerned by Ms Kelly’s behaviour. She used her mobile phone at work, disappeared into the bathroom with her phone for excessive periods and spoke on her phone in Russian. There were fears that she might be an animal rights infiltrator and it was felt necessary that English-speaking managers in the business could understand conversations that were taking place.
Although it can be discriminatory to impose certain language requirements at work, in this case another employee in similar circumstances, speaking another language (apart from English), would have been treated in the same way as Ms Kelly. There was no discrimination.
Her harassment claim failed on the same basis: the instruction to not speak Russian wasn’t given because of Ms Kelly’s race or national origin. It was because of her behaviour in the context of her employer’s operations and the risks it faced. In addition, the instruction didn’t have the effect or purpose of violating Ms Kelly’s dignity or creating an adverse environment for her (essential elements of harassment).
Treat this case with some caution. You’d need a really good business reason that justifies a restriction or ban on the use of certain languages at work. And you’d need to apply your language requirement fairly across your workforce, underpinned by a clear policy.

Disclosure of criminal convictions
R (P and A) v Secretary of State for Justice

The High Court has found fault with the system of criminal records checks in England and Wales, saying that it’s incompatible with the right to privacy and family life under the European Convention on Human Rights.
Under the current scheme, two or more convictions have to be disclosed, whatever the circumstances. This won’t always be proportionate. The offences might have happened a long time ago and might have been very minor, but if there’s more than one conviction, these must be disclosed when applying for certain jobs – indefinitely. And this can lead to people being penalised throughout their lives for mistakes they made when they were younger.
Two people brought a case arguing that point. One, who wanted to work as a teaching assistant, said that having to disclose details of her conviction for stealing a 99p book in 1999 (while suffering from a mental illness), and a second conviction for not attending court, was disproportionate and breached her privacy. Another claimant had been convicted of two minor crimes in 1981 and 1982. He argued that he shouldn’t have to disclose those convictions years later. They won.
The Home Office might appeal, so watch this space.

An 84-hour working week can be lawful
Matja Kumba T M’bye and others v Stiftelsen Fossumkollektivet

The Working Time Directive says that workers shouldn’t work more than 48 hours per week, unless they opt out of that limit. Workers are also entitled to certain daily and weekly rest breaks.
This case was about therapists at a treatment centre for young people with drug and alcohol problems. Shift patterns were to change so that workers would work for seven days and then have seven days off. Those who didn’t agree to that were dismissed and offered reengagement on the new terms.
The European Free Trade Association Court held that an 84-hour week can be lawful. There is flexibility in the rules to allow for different working patterns in certain types of jobs. Here, in a cohabitant care arrangement, continuity of care was said to be beneficial to patients. That being so, it might have been impossible for these workers (who had opted out of the 48-hour limit) to be given the rest periods to which they might otherwise be entitled. An 84-hour week was not incompatible with the Directive.
The rules on rest breaks, including compensatory rest periods, can be tricky, so get advice on your particular circumstances to check that your workers are getting their full entitlement, and before implementing any changes.

And finally….. This year’s Oscars. Where to begin?

Claims of a lack of diversity gathered huge pace in a short time, with prominent figures making their views known on the absence of non-white acting award nominees for the second year running.
It’s an issue that crosses very easily into employment law. Every employer could be scrutinised and judged on the characteristics of staff. What if your workforce is underrepresented in one way or another? What if its average age points to a paucity of older workers? Are you missing out on the benefits that diverse workforces can bring?
Our laws should ensure equality of opportunity, and recourse if someone with a protected characteristic (race, sex, age, religion or belief etc) has been treated unfairly. What the build-up to the Oscars has done, if nothing else, is draw attention once again to equality – or the perceived lack of it – still being an issue, everywhere.

Friday, February 5, 2016

Help for first time buyers

Friday, February 5, 2016

From 1 December first-time buyers have been able to save in a Help to Buy Individual Savings Account (HTB Isa), earning up to 4% and the government will add money to it. As with a traditional cash ISA, the interest you earn will be free of both income and capital gains tax. In addition, when savers take money out to buy a house or flat, the government will add 25% to whatever is in the account, up to a maximum of £3,000.

Who is eligible?

You must be a UK resident, and a first-time buyer. Indeed you cannot have owned a property anywhere in the world. If you have already opened a cash ISA in the same tax year, you will almost certainly need to close it.

What property can you buy?

The property must be purchased with a mortgage. It cannot be a second property, or for buy-to-let purposes. The maximum purchase price is £250,000, or £450,000 in London. You do not have to buy a property through the government’s Help to Buy scheme.

How much money can you pay in?

In the first calendar month, you can kick start the ISA with up to £1,200. This does not have to be paid in one go. But you may want to open the account early in the month to take most advantage of it. In subsequent months, you can pay in up to £200.

How much of a bonus will the government pay?

The government will add 25% to the account at the point you choose to buy a property. The minimum it will add is £400, meaning you need to save at least £1600. The maximum it will add is £3000, when you have saved £12,000.

The bonus is paid on the total amount in the account – in other words including the interest. But even if the account pays an interest rate of 2% a year, it will still take over four years of saving the maximum amount to earn the £3,000 bonus.

How will the bonus be paid?

Your solicitor or conveyancer will apply for the bonus when you buy a property. If there is no house purchase, your savings will continue to receive the interest payable on the Isa account.

Can you open an HTB Isa with a friend?

No. Only individuals can open an account. But two people buying a property together can each use their bonuses, giving them up to £6,000 to set against the purchase price.
What if you have already got a cash Isa?

You can open one cash ISA in any tax year. So you can still have cash ISAs from previous years, and open a HTB ISA too. If you have already opened a cash ISA in the current tax year, you cannot continue to hold that, and open an HTB ISA. So you will have to close the cash ISA.
Up to £1,200 can be transferred directly to the HTB ISA; the rest can be put into a stocks and shares Isa, or a non-Isa account.

The only exception to this is if your Isa manager offers an “umbrella” or “portfolio” arrangement, in which case it may be possible to maintain both a cash and an HTB Isa from the same tax years.

How long is the offer open for?

You will be able to open a HTB ISA up to 30 November 2019. After that date, you can continue to save in existing accounts. But all bonuses must be claimed by December 2030.

Steve Clarke comments “it has been increasingly difficult for first time buyers to scrape together a deposit without accessing the bank of Mum & Dad – this gives first time buyers the chance to earn a good interest rate on their savings and get free money from the Government. Why wouldn’t you take advantage of it?

The conveyancing department is currently very busy, so it is good to see initiatives such as this that will help support the momentum in the housing market”

Contact the Rogers & Norton conveyancing team on 01603 666001 or email web@rogers-norton.co.uk for more info.

Tuesday, February 2, 2016

100% of income from child maintenance to be taken into account

Tuesday, February 2, 2016

The Ipswich Building Society has just announced that all of its residential mortgages will be available to divorcees with 100% of the income from child maintenance taken into account when assessing affordability, provided it is supported by the Child Support Agency or Court order which has at least five years left to run.

Often divorcees will have considerable difficulty in trying to find a lender who will provide them with a mortgage even in circumstances where they have demonstrated their ability to pay an existing mortgage.

The government seems keen at present on ensuring that people make agreements directly with each other in respect of child maintenance. However, lenders usually require evidence by order or at the very least a solicitor’s letter. It is essential that you ensure your child maintenance is paid directly to your account by standing order. The lender will need to see this as evidence of an agreement. Also consider paying the child maintenance agency £20 to formally assess and approve the agreement in writing if it is not part of your consent order.

Kerry Rowell comments “being able to raise a mortgage either to purchase a new property or to release an ex-spouse from their obligations under a mortgage is often key to achieving finality in a divorce or separation.”

Below is a list of lenders showing the extent to which each will consider the child support you receive, arrange for a recommended IFA to consider them with you:-

Takes Child Support into Account (With CSA/Court Order)

Cambridge Building Society – may make an exception to the above where there is a proven track record.

Clydesdale and Yorkshire Banks – looks at borrowers on a case by case basis.

Co-operative Bank – takes 100% of maintenance into account but wants to know this is sustainable.

Metro Bank

Virgin Money –Will take it into account if the assessment or order has been in place for 2 years.

NatWest/RBS – doesn’t always insist but will look for sustainability.

Takes Child Support into Account (Without Court/CSA Order)

Santander – Will require evidence of payment for at least 3 months i.e standing order
Tesco Bank – As above

Barclays – If no court order then Barclays will consider you if child support has been paid continuously for 12 months.

Source ‘This is Money’

Friday, January 29, 2016

Success in the First Tier Tax Tribunal

Friday, January 29, 2016

Rogers and Norton successfully appealed a Decision not to restore rum and wine imported from Jamaica. The import documentation and declaration had been incorrectly completed by the shipper and broker, which described the rum as low alcohol beverage. However, on Appeal, the First Tier Tribunal accepted that Border Force and its Review Officer had not taken into a number of factors including (a) the financial difficulties experienced by the refusal to restore, (b) the Appellant was a new business and (c) that the declaration was not the fault of the Appellant.

Peter Hastings, acting for the Appellant comments “Our client was delighted with the Decision and that the matter has been referred back to Border Force to reconsider the request to restore. It is essential that when a Review is sought, all points and factors to consider are detailed for Border Force to consider, and if they fail to consider each point this will help on an Appeal. If the Decision not to restore is unreasonable, the Tribunal will consider allowing the Appeal”.

Peter adds “I would also like to praise David Bedenham, counsel, of 11 Kings Bench Walk for his skilled advocacy and detailed preparation leading up to the hearing”.

The team is currently acting for businesses and individuals on a number of Border Force and HMRC matters including Appeals to the First Tier Tax Tribunal and also advising businesses on the Alcohol Wholesale Registration Scheme.

Wednesday, January 27, 2016

Guest at Rogers and Norton Charity Ball wins a diamond worth over £3000 for a tenner!!

Wednesday, January 27, 2016

Following the Winter Wonderland Charity Ball held at Barnham Broom in November raising funds for Nelson’s Journey, the presentation of a diamond worth £3250 has taken place at Zelleys Jewellers in St Giles Street Norwich to the lucky winner, Mrs Helen Youngs.

Guests at the Ball, hosted by solicitors Rogers and Norton, purchased tickets for £10.00 each for a chance to win the diamond and Mrs Youngs was the lucky winner. The diamond was kindly provided by Zelleys Jewellers and the evening raised over £12,000 in total for the Charity.

The above photo shows Mrs Youngs receiving the diamond from Graham Knights and Ellie Walpole of Rogers & Norton and Alistair Zelley representing Zelleys Jewellers.

Tuesday, January 26, 2016

New Year’s Resolution – Make a Will

Tuesday, January 26, 2016

According to a recent article in Moneywise, most UK adults risk dying intestate.

Almost nine out of ten people aged 20-29 have no Will in place according to research by the financial adviser comparison site unbiased.co.uk. and nearly two-thirds of 40-49 year olds and 60 percent of 50-59 year olds have not made a Will. Should they die now they would die intestate.

This means that they would not have a say in what happens to their estate. The “Rules of Instestacy” will divide their estate according to pre-determined rules which will not take into consideration any wishes they may have had. It also may not be dealt with in the most tax-efficient way.

How likely you are to have a Will in place also seems to depend on where you live. In Brighton for example, 70 percent of respondents said they have no Will. In contrast, only 55 percent of Glaswegians said they had not made a Will.

The most common reason for not having a Will is that people are putting it off until they are older and this includes about one in seven people in their sixties. Meanwhile, 17 percent say they have too few assets to make a Will necessary.

Karen Barrett, CEO of unbiased.co.uk says that “Our research made two especially interesting findings, which are rather at odds with each other. We confirmed that people really do want to ensure their loved ones are taken care of after they’ve gone – but that most aren’t doing anything about this.”

Everyone should have a Will. We spend our lives looking after loved ones and by making a Will it ensures that when you die your estate is distributed according to your wishes whatever the size of your estate. Should you not have children it is equally important to make a Will so that the people or charities you care about inherit.

The advice from the Law Society is that trying to make your own Will without legal assistance can lead to mistakes or lack of clarity and could mean that your Will is invalid. You should consider:

who should carry out the wishes in your Will (your executor/s)
any gifts or other special wishes such as burial/cremation
who should look after your children (if you have any)
who you would like to leave the remaining estate to and what happens if any of your beneficiaries die before you do.

If you have long-term residential or business connections outside England and Wales this may have tax and administration implications and you will need legal advice as to how it could affect your Will.

Once you have written your Will you should review it at regular intervals to make sure that it still reflects your wishes. This is especially important if you:

Get married/enter into a civil partnership as your Will is automatically cancelled by these events
Get divorced
Have children or other relatives you wish to benefit such as nieces, nephews or grandchildren
Have bought a new house or acquired other assets

If you would like to discuss making a Will, or changes to an existing Will, please contact Wenke Lie-Critchley on 01953 458162 or email wlc@rogers-norton.co.uk.

Thursday, January 21, 2016

Employment Law Bulletin January 2016

Thursday, January 21, 2016

Welcome

If you have embarked on a disciplinary or two after the festivities, you won’t be alone.

The perils of alcohol-fueled Christmas parties are well-documented, and their aftermath often leaves employees with more than just a red face and a tarnished reputation.

The point is that January is the month for sorting out. It’s a time for resolving to do the things you may have been putting off – reviewing your policies and auditing your procedures, for example. Whether it’s tackling day-to-day management issues, ironing out operational problems, or making the big, strategic business decisions, go for it. It’s what the beginning of a new year is all about.

Different disciplinary treatment could be justified

MBNA v Jones

Two employees became involved in some sort of kneeing, face-licking, punchy, text message-threatening exchange that began at their employer’s 20th anniversary bash at the races. What started as fun or banter, as onlookers saw it, escalated and led to one of the men losing his job.

The long and short of it was that he was dismissed for punching the other in the face. The other employee, who had sent threatening texts once the men had left the event, was given a final written warning. Two employees, same episode, different treatment. Was the dismissal of the first fair?

No, said the tribunal. Both employees had committed acts of gross misconduct and there was unfair disparity of treatment.

The Employment Appeal Tribunal overturned that decision. The dismissed employee had punched the other in the face at a work event at which staff had been told about the standards of behaviour that would be expected of them. The other employee had later threatened to do something that he didn’t carry out. The more lenient treatment of the second didn’t make dismissal of the first unfair; that decision wasn’t wrong or outside the band of reasonable responses. The two men were disciplined for different things.

So, even though consistency is really important in disciplinary situations, it can be ok to treat employees caught up in one incident differently. But tread cautiously. You need to be very clear about who did what, and about the sanction that’s appropriate to their actions. Keep good notes of the thought processes you have followed in reaching your decisions.

If you’re unsure about any of this, get some good, early legal advice.

Negative references and discrimination

Pnaiser v NHS
England and Coventry City Council

Ms Pnaiser worked for Coventry City Council. She was disabled and had had quite a lot of absence. When she was made redundant, she negotiated a settlement agreement that contained an agreed reference. She was then offered a job with NHS England. But that offer was withdrawn after a conversation between her recruiting manager and the Council. There was some debate later on about what exactly the Council officer said during that phone call and how, but the gist was an implication that Ms Pnaiser might struggle to cope with the new role. Crucially, Ms Pnaiser’s sickness absence was mentioned. She alleged disability discrimination against the Council and NHS England, winning on appeal. The Employment Appeal Tribunal said that the tribunal had taken the wrong approach. As the Council’s comments about unsuitability were at least partly because of Ms Pnaiser’s absence (which was a consequence of her disability), it was for the Council and NHS England to show that the sickness absence played no part in the reasons Ms Pnaiser was said to be unsuitable for the role, and in the withdrawal of the job offer. The big lesson here for employers is: stick to the agreed reference. It’s always best to agree a reference that is as full and accurate as you can make it, and don’t depart from it. And if you are the potential employer, you will need to carefully judge a situation in which you’ve been given more information about a job candidate than their agreed reference reveals. Weigh up the discriminatory implications of acting on that information, and the consequences of taking on an employee who you have discovered may not be up to the job.

Transgender guidance

A new guide has been published to help employers deal properly with transgender staff. It’s all about creating a more inclusive culture.

As well as helping employers recruit and retain transgender staff, the guide sheds light on the day-to-day management of transgender issues.

One of the really interesting sections is about handling situations in which an existing employee embarks on a transition. Employers may not know immediately how best to support that employee, including how to communicate what’s happening. Nor will employers necessarily have the right systems and policies in place to deal with the sorts of situations that may crop up.

It’s a guide that is well worth every employer reading.

Bigger fines for corporate breaches

The law is about to get tougher on organisations which have fallen foul of health and safety rules.

From 1 February 2016, corporate manslaughter, health and safety, and food safety and hygiene breaches (whenever they took place) will attract greater fines. In the most serious cases, this could be as much as £20 million.

Penalties will be relative to the severity of what’s happened, and the size of your business. Even those employers who operate in what is considered to be a low hazard environment, or who have robust systems in place that take care of risks, should sit up and listen. Every organisation has the capacity to trip up, and the potentially devastating effects of a breach – in all sorts of respects – could see that organisation crumble.

Attendance policy didn’t need adjusting
Griffiths v Secretary of State for Work and Pensions

The duty to make reasonable adjustments engages once an employer knows (or should reasonably be expected to know) that an employee is disabled. But as this case has shown, there are limits on what an employer will be expected to do.

Ms Griffiths was disabled. Her 66 days of absence (62 of which were because of her disability) triggered a written warning under her employer’s attendance policy. She claimed disability discrimination. Her view was that the DWP ought to have held off from issuing the warning. Its procedure should have been modified to allow her more days off work than a non-disabled person, and periods of sickness absence related to her disability should have been disregarded. These would have been reasonable adjustments, she argued.

The Court of Appeal said no. The employer’s provision, criterion or practice (the requirement to work at a certain level to avoid getting warnings and possibly being dismissed) didn’t put Ms Griffiths at a substantial disadvantage. The same sanctions applied to her non-disabled colleagues. On the facts of this case, it wasn’t reasonable to expect the employer to alter its policy.

The same outcome may not apply in other cases; it really does come down to the specifics of each situation. The Court of Appeal confirmed that the duty to make reasonable adjustments can apply to sanctions under an absence management policy, even where that policy treats disabled and non-disabled employees equally.

Preparing for a wage hike

Is your business ready to cope with introduction of the National Living Wage in April 2016? The press is reporting the views of some that recruitment will be scaled back, workforces reshaped, and prices put up to cover the extra 50p per hour that will need to be paid to lower-earning workers. Increasing basic pay to £7.20 for workers aged 25 and over may not be something that affects you or your business significantly or at all. But even if that’s so, it could well affect those you’re doing business with; suppliers, for example, who may have to look at their commercial options. Wherever you stand in all of this, it’s sensible to address your mind to the potential consequences. And bear in mind, too, that the living wage is set to go up to £9 per hour by 2020, so you might want to factor that into your planning.

And finally…
Kitchen possible?

If you watched the TV documentary Kitchen Impossible, you are bound to have been left with more than just an impression of the pressures involved in the catering industry.

The series followed a group of disabled people learning the ropes under the guidance of Michel Roux Jr. And it exposed many of the everyday challenges that face those with disabilities, not least when it comes to employment.

And this is timely. The Government is in the midst of trying to halve the employment gap between disabled and non-disabled people and wants businesses to provide more opportunities to those who might otherwise be left out of the marketplace.

This is against the backdrop of some employers’ nervousness around learning disabilities, as a survey by Mencap and Inclusive Employers has revealed. Concern about interaction between customers and staff was highlighted, as well as concern among 23% of the 60 or so UK businesses surveyed that not all colleagues would feel happy about working with someone with a learning disability.

While some of these statistics may make for uncomfortable reading, one of the themes that emerges is more positivity among those organisations that have employed people with learning disabilities.

There will be some way to go before there is wholesale change both in attitudes and in the statistics. But as knowledge and awareness grows, it’s hoped that more employers will embrace the benefits of a workplace that is open to all.

Tuesday, January 19, 2016

Financial Loss in Fatal Accident Claims

Tuesday, January 19, 2016

It is a sad occurrence when anyone is killed in an accident, but when that accident was avoidable and caused by someone’s actions or omissions, often a claim in damages can be pursued. This is an area of law which requires expert assistance and which has to be handled extremely delicately and with the utmost sympathy. To try and value someone’s loss by an award of damages is impossible and quite understandably can in itself cause additional grief and trauma to the surviving relatives. However, the award of damages is the means the law provides to compensate for a loss of life, where the death has arisen by an act or omission of someone else and part of that award is to provide a financial sum to compensate for the loss of both the financial dependency (often earned or pension income) that the deceased provided but also the non financial dependency (assistance with gardening, DIY and household chores for example) that was provided.

This article will not examine the extent of potential Claimants following a loved ones death or the extent to which the law can compensate for bereavement as both are complicated issue and matters upon which legal advice should always be sought. This article instead will look at the issue of the calculation of loss in the light of the case of Knauer (Widower and Administrator of the Estate of Sally Ann Knauer) (Appellant) v Ministry of Justice (Respondent). This case is taking a very important issue to the Supreme court on the calculation of loss under a Fatal Accident Claim and is due to be heard on the 28th January 2016 by a panel of 7 judges. The case was held to be so important that its procedure from the High Court to the Supreme Court bypassed the Court off Appeal as it is seeking to change the law which is currently in force.

The significance of this case is that under the current law, the courts will always calculate loss arising from someone’s death by calculating all losses from the date of the death. This means that if someone would have survived for say 20 years but for the fatal accident, the loss will be calculated for that 20 year period but, the 20 years will be discounted to reflect the fact that the loss is being paid as a lump sum and can be invested over the 20 year period and achieve a return of interest. For example, a 20 year loss of say £10000 per annum could be awarded at around 15.7 years x £10,000 to reflect the early receipt of the damages. However, quite often the assessment of Fatal Accident Damages takes place many years after the death but the loss is still calculated from death. Therefore, losses which have now occurred and which have passed are still calculated by the multiplier from the date of death. In short this approach means that a Claimant claiming under the Fatal Accident Act is receiving potentially less damages than they should receive based on the deceased life expectancy and the period of time past since the death. It is also an approach which is arguably inconsistent with the approach used in personal injury claims were no death has occurred but losses continue to occur into the future.

The issue the Supreme Court needs to decide in Knauer is whether the correct approach to calculating Fatal Accident Damages should be to allow all losses since death to the date of the assessment of the claim in full, without applying any discount and only discount for early receipt the losses occurring after the assessment, using the above approach, until what would have been the deceased assumed date of death if the accident had not occurred. This will then only discount for early receipt the dependency claim which, but for the Fatal accident, would not have at that time been received.

The approach being contended for in the case of Knauer has been a view expressed as more appropriate by many lawyers and legal commentators for many years and if applied would likely increase the overall value of Fatal Accident claims. As such lawyers will be looking for the outcome of this case as it may well effect many Fatal Accident Claims which are currently being investigated and it will be interesting to see if the Supreme Court take this opportunity to change the law on this issue.

Whilst the Supreme Court hearing is on the 28^th January 2016, the final judgement may take a while to be handed down but this is a judgement which all personal injury lawyers will be looking out for with great interest.

Mark Hambling is a Director of Rogers & Norton, a Senior Litigator with the Association of Personal Injury Lawyers and handles Fatal Accident and Personal Injury Claims within the Rogers & Norton Personal Injury team in Norwich and Attleborough

For more information please contact Mark Hambling on 01603 675611 or email mbh@rogers-norton.co.uk.

Wednesday, January 6, 2016

Not just any Break Clause…

Supreme Court dismisses Marks & Spencer’ appeal for repayment of overpaid rent following termination of Lease by break notice.

Prospective Tenants need to be wary of the way break clauses in leases are drafted following the case of Marks & Spencer plc (Appellant) –v- BNP Paribas Services Trust Company (Jersey) Limited and another (Respondents) [2015] UKSC72 which was decided late last year.

Marks & Spencer (M&S) were tenants of a part of a building under a Lease which included a break clause allowing them to break the lease conditional on there being no arrears of rent and on payment of a lump sum of just under £1m (reflecting exactly a year’s rent).

The break date fell in the middle of a quarter on 24 January 2012. On the quarter day prior to the break date (25 December 2011) M&S paid the full quarter’s rent, full quarter’s car park licence fee and the full quarter’s on account service charge. Approximately six months prior to the break it also paid a year’s insurance premium. There was no provision in the Leases expressly obliging the Landlord to repay any rent in respect of the period following on from the break date. M&S nevertheless argued that the overpaid rent (in respect of the period after the Break Date) should be repaid to them.

The matter passed through the High Court and the Court of Appeal to the Supreme Court who ultimately concluded that:-
In the absence of an express term in a lease or indeed any other contract a term will only be implied if it satisfies the test of business necessity and:-

it must be reasonable and equitable
it must be necessary to give business efficacy to the Contract so that no term will be implied if the Contract is effective without it
it must be so obvious that it “goes without saying”
it must be capable of clear expression
it must not contradict any express term of the Contract.

The Supreme Court therefore concluded that the general law on apportionment of rent is that without an express term rent paid in respect of a period after the end of a Lease is not repayable by the Landlord. In this case therefore M&S were not entitled to recover the overpaid rent.

Bruce Faulkner comments “In many cases this will not be an issue because Break Dates tend to fall at the end of a Rent Period but Tenants should ensure that, when negotiating break clauses, specific terms are included obliging the Landlord to repay any rent and other payments paid in respect of any period after the break date.

Although this particular case related to a break clause in a Lease, it also has relevance to other commercial situations and the message from the Supreme Court is clear that where there is a detailed commercial Contract the Court will respect the bargain struck and will not, unless absolutely necessary, interfere with what the parties have put in writing”

For further information please contact Bruce Faulkner on 01603 675608 or email bwf@rogers-norton.co.uk.

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Wednesday, January 6, 2016

Supreme Court dismisses Marks & Spencer’ appeal for repayment of overpaid rent following termination of Lease by break notice.

Rogers and Norton Solicitors

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