New Lawyer Strengthens Family Law Team

April 2013

Julie Watts has been appointed as an Associate Solicitor in the Family team of leading Surrey law firm Downs Solicitors LLP.  She joins the firm from TWM Solicitors. Prior to this, Julie was with the niche matrimonial practice, Wheltons in Guildford prior to its merger with TWM in 2012.

Julie deals with the full range family law matters including cohabitation agreements, separation agreements, child issues  and marriage breakdown and she is an experienced Collaborative lawyer.

Julie’s key strengths are her straightforward, practical and no-nonsense approach, as well as her ability to support her clients so that they are able to understand and take control of the process with a view to moving forward in a constructive manner. 

Andrew Christmas, head of the Family Law team says: “We are delighted that Julie has joined Downs. Her appointment provides the team with a wealth of experience and expertise that will ensure we continue to provide a high quality service to our clients.”

As well as a trained Collaborative Lawyer, Julie is also a member of Resolution, a national association of family lawyers which promotes dealing with family problems in a non-confrontational way. They encourage solutions that consider the needs of the whole family - and in particular the best interests of children. 

Julie said of her appointment “Dealing with the legal aspects of family problems requires not only a thorough knowledge of the law but a tactful and understanding approach. I am thrilled therefore to be part of the Family Law team at Downs as the firm has an excellent reputation for client care.”

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Employer's disciplinary investigation was not an invasion of privacy

Author: Daniella Magennis

In the case of Garamukanwa v Solent NHS Trust, the Employment Appeal Tribunal considered whether it was a breach of Article 8 of the European Convention on Human Rights (ECHR) for employers to use personal material stored on an employee’s mobile phone in disciplinary investigations against that same employee where such content has an effect on work-related matters.

Suspension of Childcare Vouchers During Maternity Leave

Author: Daniella Magennis

INTRODUCTION

Many employers offer employees childcare vouchers under a salary sacrifice scheme. This allows employees to benefit from tax and national insurance savings.

Recruiting and Retaining Transgender Staff

Author: Daniella Magennis

On 26 November 2015, the Government Equalities Office issued guidance for employers on recruiting and retaining transgender employees. This new advice has been produced in collaboration with the UK’s leading inclusion and diversity experts, Inclusive Employers, who work with employers to achieve an inclusive culture in the workplace. Correspondingly, the recently published guide offers useful practical suggestions and ideas on how employers can implement new strategies in the running of their organisation to afford more consideration to transgender employee needs; thereby creating an ethos that engenders dignity to all workers, allows every member of staff to feel included and complies with the law.

How To Restrict The Activities of Former Employees

Author: Matthew Kilgannon

We often advise clients regarding the enforceability, or otherwise, of clauses seeking to limit the activities of former employees. Most people are of the view that such clauses cannot be enforced, but, if properly drafted; such post-termination restrictions can be enforceable.

Protection of IT Supplies

Author: Chris Millar

IT supplies are hugely important for the continuation of many businesses and section 233A of the Insolvency Act 1986 extends the list of essential suppliers to include IT supplies “for the purpose of enabling or facilitating anything to be done by electronic means”. Such suppliers will be unable to terminate supplies or demand existing pre-insolvency debts are paid, as a condition of continuing supplies.

When Can Your Child Be Left Home Alone?

Authors: Nicola Conley & Tyne Harman

With the Easter holidays approaching you may be wondering about childcare arrangements and whether your child is old enough to be left on their own. What age do they need to be for it to be safe enough to leave them unattended? In truth, there is no law stating an age when you can leave a child on their own, however it is an offence to leave a child alone if it places them at risk of harm.

Budget Update and Other Employment Law Changes 2016

Author: Emily Kidd

As we digest the effect of today’s budget on our lives, I set out below a summary of the implications for employers.

Capital Allowances - Is Time Running Out?

Authors: Caroline Walton and Megan Lawless

Did you buy or sell a commercial property on or shortly after 1 April 2014? If so, you risk losing the right to make a claim for capital allowances (CA) as the two year deadline to make such a claim is fast approaching!

Persons With Significant Control Register

Author: Neil Pfister

What is the PSC Register and why has it been introduced?

From April 2016, nearly all companies and LLPs in the UK will be required to keep a ‘PSC’ or 'persons with significant control' register to ensure that the individuals who are its ultimate beneficial owners and controllers are identified, and crucially that details of their holdings in these companies and LLPs are made public.

Castlebridge Plant Ltd (In Administration)

Author: Nigel Cook

The Scottish Court rejected an application by administrators for an Order allowing them to avoid the need to set aside the prescribed part of the floating charge realisations.

Five Star Properties Limited

Author: Nigel Cook

The company Fivestar had been placed into administration and owned a freehold property which had been charged to a secured lender. Following the administration the company was dissolved rather than being placed into administration.

Armstrong Brands Limited (In Administration)

Author: Nigel Cook

Armstrong Brands Limited entered into a loan agreement to be supported by a debenture which, if properly executed, would be a “qualifying floating charge”. Both the loan agreement and debenture were signed by the then sole Director and the Company Secretary but left undated and undelivered for some months. By the time the debenture was actually delivered the director had resigned and been replaced.

Why drafting your own Divorce proceedings is not always a good idea

Author: Nicola Conley

Divorce is one of the most stressful situations that you can go through. It is emotional, causes much anxiety and your mind is in turmoil so you may not be thinking rationally. Whilst a lot of people start their divorce proceedings themselves by completing the forms on line, we often speak to people who have completed the documents incorrectly, and then face the added stress and burden of trying to rectify the errors.

How Effective Are Your Contracts of Employment?

At Downs, we regularly review and draft Service Agreements for Directors and contracts of employment (whether for full-time staff, part-time staff, fixed term appointments, home workers, zero hours etc). Doing so enables us to highlight some important areas for you to consider.

Social Media Misconduct – Relying on Stale Information

Author: Keith Potter

It is frequently said that an employer ought to act promptly when made aware of information which may involve a breach of a disciplinary rule, particularly in cases where the possible penalty is dismissal.

Dismissals and Inconsistency of Treatment

Author: Keith Potter

From time to time employers are faced with cases in which two or more employees have taken part in an instance of misconduct, often one involving violent or threatening behaviour. The employer may take the view that the conduct of one of the participants was more reprehensible than that of the other(s). Is the employer entitled to differentiate between the employees as regards the disciplinary sanctions that it imposes?

Disability Discrimination and References

Author: Keith Potter

A further illustration of the pitfalls associated with allegations of disability discrimination arises from a recent Employment Appeal Tribunal (EAT) case involving the giving of a written and verbal reference.

“Who would be a Landlord?: The trouble with buying to let”

Author: Ian Jones

As of 1 February 2016 the Government’s ‘Right to Rent’ law came into force. This requires private landlords to check, prior to the commencement of any new tenancy, that a tenant or lodger can legally rent a residential property in England and Wales.

New Rules For Assured Shorthold Tenancies

Author: Laura Marchington

The Deregulation Act 2015 (“the Act”) received Royal Assent on 26 March 2015. The Act contains a mixed bag of provisions from landlord and tenant to transport and health & safety and child and trust funds. It was billed to simplify regulation and iron out a number of glitches in the law but due to the pace it was rushed through Parliament, it is questionable whether this has been achieved.

Combat Property Fraud

Author: Caroline Walton

In an attempt to combat property fraud, the Land Registry have introduced an alert service called 'Property Alert' which is aimed at helping the public to protect themselves against property fraud.

Construction Design & Management Regulations 2015

Author: Stephanie Tilley

The Construction Design and Management Regulations (CDM Regs) of 2007 have been revised by the CDM Regs 2015 and these changes, which took effect on 6th April 2015, relate to the management of Health & Safety on construction, engineering and property projects and developments, and the extension of the responsibilities and obligations to affect domestic projects. Criminal and civil sanctions continue to attach to any breaches.

Sharland & Gohill - "Fraud Unravels All"

Author: Tyne Harman

In the recent cases of Sharland and Gohill, the Supreme Court ruled that Mrs Sharland and Mrs Gohill could re-open their financial cases on the grounds of their ex-husbands’ fraudulent disclosure of their respective finances.

The Myth of the Common Law Spouse

Author: Sarah Gillen

You might be surprised to learn that since 2005 cohabitation has increased by approximately 33% compared to an approximate 2% increase in marriage. Some of the reasons for this could be that people are giving higher priority to achieving financial independence, getting a foot on the property ladder or having children over marriage. In addition, there no longer appears to be any stigma attached to cohabitation or starting a family outside of wedlock. Even Prince William and Kate Middleton cohabited prior to marrying which would have been unheard of a generation before.

The Alternatives to Taking a Dispute to Trial

Author: Angus Storar

Recently, a Ministry of Justice poll of Court users for 2014/2015, showed that 70% of all Claimants had attempted to resolve their dispute directly with their opponents and of those Claimants, 68% would have rather avoided making a Court claim and the expense of litigation..

Employers Liable for Staff Who Drive at Work

Co-Authors: Matthew Kilgannon and Daniella Magennis

BACKGROUND

Many employers are oblivious to a very important legal responsibility; protecting the health and safety of employees who drive at work.

Consumer Rights Act 2015 : What You Need to Know

Co-Authors: Neil Pfister and Daniella Magennis

BACKGROUND

The Consumer Rights Act 2015 (the Act) came into force on 1 October 2015, marking the most significant overhaul to UK consumer law since the Unfair Contract Terms Act 1977. Prior to the Act most UK consumer legislation dated back 30 years - a time when online retailers were yet to exist and digital content was a far cry from the multimedia hypermarket that we have at our fingertips today. In addition, consumer law was overly complex and ambiguous with much overlap between the various pieces of relevant legislation. Indeed, inconsistencies emerged in some cases where UK consumer law was found to conflict with EU law.

Court Fees - The New Landscape

Author: Martin Steer

The issue fees for all civil claims above £10,000 are now calculated at 5% of the value of the claim subject to a maximum Court fee of £10,000 and Claims of £200,000 or more will cost £10,000 to issue.

How Safe is 'Safe-Harbour'?

On 6 October, the Court of Justice of the European Union (CJEU) issued its decision that has far reaching implications on businesses that transfer personal data to the United States. It held that the European Commission’s decision on 26 July 2000 that personal data can be transferred to the United States where organisations sign up to the ‘Safe-Harbour’ data protection principles, was invalid.

Green -v- Gigi Brooks Limited

This was an application for an administration order by a former director and alleged creditor of the company. The applicant had been excluded from the business by her fellow director. From the facts it appears that the company was a start-up and that its business plan did not anticipate it making a profit for some time.

New Rules Under SBEEA 2015

Author: Nigel Cook

There is a hotchpotch of provisions in these Acts containing amendments to the Insolvency Act 1986 and the Rules.

Some provisions have already into effect (as anticipated in our previous IP Alerter) and others have been brought in during October 2015.

Ex Turpi Causa Lives

Author: Chris Millar

Ex Turpi Causa (Non Oritur Actio) essentially means that no action should arise based upon an illegal act. This equitable principle has been developed by the Courts over many years, latterly by the House of Lords in Tinsley v Milligan (1994) and Stone & Rolls Limited v Moore Stephens (2009), when the Court struck out a claim against auditors for failing to discover the fraudulent activities of a director, upon the basis that the claimant company was attributed with the illegal activities of that director.

English Schemes of Arrangement

Author: Chris Millar

It remains the case that many foreign companies (particularly those with their COMI in the EU) wish to avail themselves of the English Schemes of Arrangement for compromising or re-structuring liabilities. The English Courts have in recent years accepted jurisdiction where they have considered that there is “sufficient connection” with the laws of England.

Validation Orders and Good Faith

Author: Nigel Cook

The case of Wilson and 375 Live Limited v SMC Properties Limited was an application for a Validation Order under Section 127 of the Insolvency Act 1986. It was heard by Mr Registrar Briggs. The case involved 375 Live Limited taking a bridging loan and granting a mortgage over freehold property to the lender as security. Under pressure from the lender the company sold the property unaware that prior to completion of the sale HMRC had presented a winding up petition. The purchaser applied to Court for a retrospective Validation Order which was opposed by the liquidator who claimed that the property had been sold at an undervalue and the transaction declared void.

Increase in Bankruptcy Level

Author: Laura Marchington

Historically, the service of a Statutory Demand has been the precursor to commencing insolvency proceedings, whether it was bankruptcy proceedings against an individual or a Winding up Petition against a corporate director.

Licensing & Registration for Landlords in Wales

Author: Caroline Walton

The Housing (Wales) Act 2014 was introduced with the aim of improving letting and management standards for people who rent private accommodation across Wales. From this Autumn all private landlords who have a rental property in Wales must register themselves and the addresses of their rental properties. Landlords who undertake letting and property management activities at a rental property in Wales must apply for a licence via Rent Smart Wales unless they instruct an agent to do the work on their behalf in which case the agent must be licensed.

Unfair Dismissal where HR overstepped the mark

Author: David Seals

In the recent case of Ramphal –v- Department for Transport, the Employment Appeal Tribunal (“EAT”) held that a dismissal was potentially unfair where it had been too heavily influenced by the HR department. The case has serious implications on the limit to HR’s role in dismissal cases.

Ilott v Mitson - Estranged Daughter Wins Inheritance Battle

Author: Zara Munday

English law has historically provided that you should (with some exceptions) be able to leave your estate to whomever you wish. The exception lies in the ability for certain disappointed family members to make a claim under the Inheritance (Provision for Family Dependants) Act 1975 for ‘reasonable provision’. It is usually very difficult to prove that you have not been left a ‘reasonable provision’ by the deceased.

Draft Smoke and Carbon Monoxide Alarm Regulations

Author: Caroline Walton

The Smoke and Carbon Monoxide Alarm (England) Regulations 2015 contain the draft proposals which are expected to come into force on the 1 October 2015. They will require residential landlords in the private rented sector to...

Work and The Menopause

Author: Nicola O'Dwyer

The menopause may be a taboo subject at work but employers who ignore it are potentially at risk of employment claims. A recent government commissioned report indicated that employers should consider the impact that the menopause may have on their female employees and how they can address any issues they may experience.

Dismissal of Christian for Homophobic Views was Discrimination

Author: David Seals

In the recent case of Mbuyi –v- Newpark Childcare (Shepherds Bush) Limited an employment tribunal found that a Christian nursery worker had been unlawfully discriminated against when she was dismissed for expressing negative views of homosexuality at work in relation to a colleague.

Tenants' Energy Efficient Improvement Provisions

Author: Andrew Peach

Do you rent out your property?

If so, you must be aware of the provisions of the Energy Efficiency (Private Rented Property) England and Wales Regulations which enable tenants to make energy efficiency improvements to domestic private rented properties and to require minimum energy efficiency standards (MEES) to be met before both domestic and non-domestic properties can be let out.

Landlords and the Deregulation Act 2015

Author: Caroline Walton

If you are a landlord of residential property who has let the property out on an Assured Shorthold Tenancy (AST) then you may need to take action before 23 June 2015 to avoid financial penalties and the possibility of being prevented from recovering possession of the property from the tenant.

Election 2015: What's In Store for Employment Law?

Author: David Seals

With less than a week until polling day, we consider what the main political parties have planned for employment law should they be elected.

"Public Interest" Test for Whistleblowing - An Easy One to Satisfy?

Author: David Seals

The Employment Appeal Tribunal (EAT) has made a decision which suggests that the “public interest” test for whistleblowing claims introduced two years ago will be a much easier one to satisfy than had been previously thought.

Change in Succession Law for British Nationals

Author: Zara Munday

The upcoming changes to European Law will allow greater flexibility to owners of foreign property and give individuals increased control over who they can leave their property to once they have passed away. The following article is relevant for individuals who have moved from England to a participating EU state and for those who live in England but have property in a participating EU state.

Injury to Feelings Awards Can Be Tax Free

Author: Matthew Kilgannon

The recent case of Timothy James Consulting v Wilton has provided some helpful guidance on a couple of important areas of law:

Shared Parental Leave

Author: David Seals

Shared Parental Leave (“SPL”) is a brand new employment right from April 2015 which allows working parents to share statutory leave and pay on the birth or adoption of a child.

Shared Parental Leave and Pay

Shared Parental Leave and Pay - the New Employment Right

Existing Family-Friendly Employment Rights

Maternity Leave – pregnant employees are entitled to 52 weeks maternity leave and, subject to eligibility conditions, 39 weeks statutory maternity pay (“SMP”). SMP is paid at the following rates: 

Winding Up Petition Backdated

Author: Chris Millar

Phoenix Companies

Author: Chris Millar

(a) Can a creditor find out if a director has applied for permission to re-use a prohibited name?

Laverty v British Gas Trading Limited

Author: Nigel Cook

This case involved a claim by British Gas Trading Limited (BGT) against former administrators of Peacock Stores for gas and electricity supplies to vacant stores. BGT argued that these supplies should be an expense of the administration and thus have a priority.

Insolvency (Protection of Essential Suppliers) Order 2015

Author: Nigel Cook

This Order which will come into effect on 1st October 2015 is derived from the Insolvency Service Consultation and draft Order issued in July 2014 which we reported previously.

EC Regulation on Insolvency Proceedings

Author: Nigel Cook

Changes to some of the provisions of the EC Regulation on Insolvency Proceedings (ECRIP) will come into effect in 2017. The main changes relate to the assessment of the centre of main interests (COMI) both for corporate and individuals; broadening the scope of secondary proceedings; protection of local i.e. national creditors outside secondary proceedings; and coordination of cross border group insolvencies.

Fit for Work

Author: Nicola O'Dwyer

In December 2014, the Government launched the Fit for Work scheme (“FFW”). The scheme includes a website and telephone advice line. The opportunity for an occupational health referral will be in place by May 2015.

Flats, Marriage and the 80 year hitch

Author: Lynda Russell

When the term remaining on a lease of a residential property drops below 80 years it not only affects the owner’s ability to sell the property, it also decreases the value of the property and substantially increases the premium payable to the landlord for a lease extension. It is therefore imperative to give serious consideration to applying for a lease extension before the dreaded 80 year mark dawns.

Civil Court Fees Increase

Author: Floris Shoebridge

The Government has recently announced that court fees for the issuing of civil claims are to increase dramatically from April 2015 attracting criticism from Senior Judges, the Law Society, and other members of the legal profession.

Small Scale Developer Contributions

Author: Heather Kershaw

The Community Infrastructure Levy came into force in April 2010. It allows local authorities in England and Wales to raise funds from developers undertaking new building projects in their area. The money can be used to fund a wide range of infrastructure that is needed as a result of development. This includes new or safer road schemes, flood defences, schools, hospitals and other health and social care facilities, park improvements, green spaces and leisure centres.

Landmark holiday pay case increases costs for employers

Author: Matthew Kilgannon

Overview

As has been highlighted in the press, the Employment Appeal Tribunal (“EAT”) has this week delivered a decision in the cases of Bear Scotland Ltd v Fulton (and other co-joined appeals) that could have far reaching implications for employers.

Landlord & Tenant - The Immigration Act 2014

Author: Caroline Walton

The Immigration Act 2014 (IA 2014) makes a number of changes to the UK immigration rules in that it prohibits private landlords of residential properties from allowing certain people to occupy those properties. Landlords will now have to check the immigration status of prospective tenants to ascertain whether they have the right to occupy the premises before granting them a tenancy. They must also make sure that someone’s right to occupy the premises does not lapse. The right to rent checks will only apply to new tenancy agreements. Existing tenancy agreements are unaffected and landlords will not be required to carry out retrospective checks.

New Ground for Possession of Property

Author: Andrew Peach

The Anti-social Behaviour, Crime and Policing Act 2014 (Commencement No. 7, Saving and Transitional Provisions) Order 2014 (SI 2014/2590) has been made, bringing into force various sections of the Anti-social Behaviour, Crime and Policing Act 2014 (ABCPA 2014). Section 97 of ABCPA 2014 will come into force in England on 20 October 2014.

Changes to the Children & Families Act 2014

Author: Anne-Marie Webber

The Children and Families Act 2014 introduces many changes, including: ...

Fracking - Should You Be Concerned?

Author: Alex Muir

Fracking is the process of drilling down into the earth and directing a high-pressure mixture of water, sand and chemicals at the rock to release the shale gas inside, allowing the gas to flow out to the head of the well. Fracking is shorthand for hydraulic fracturing and refers to how the rock is fractured apart by this high pressure mixture. The process is carried out vertically or, more commonly, by drilling horizontally to the rock layer to create new pathways or extend existing channels.

Urgent Warning for Residential Landlords

Author: Caroline Walton

In the latest tenancy deposit case of Gardner v McCusker, the Judge issued financial penalties against the landlord for not issuing the required Prescribed Information. The Court quashed the Section 21 Notice and ordered the landlord to:

Landlord & Tenant - No Cash Back for M&S

Author: Tamsin Reader

In the case of Marks & Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd & Another [2014], the Court of Appeal has overturned a first instance decision. The tenant, M&S, had exercised a break clause ending its lease early.

Employment Law - It's a funny old game!

Author: David Seals

With the World Cup about to kick off in Brazil these are exciting times for football fans. Expectations for the England team doing well are (thankfully) not high but, based on past experience, expecting a few World Cup-related employment issues might be something you should plan for.

Where there's a Will, there isn't always a way

Author: Elizabeth Muston

Some years ago, an elderly client visited our offices to update his Will. We found that his wife also needed a Will but he wasn’t sure if she could make one because she was in a nursing home hundreds of miles away suffering from dementia. We suggested that a solicitor local to the home should visit her to try to establish whether she could understand enough to make a Will and if so, whether she wanted to. We heard no more…

Commercial Rent Arrears Recovery (CRAR)

Author: Laura Marchington

Commercial Rent Arrears Recovery (CRAR) is a method of enforcement to recover rent arrears relating to commercial properties. CRAR came into force on 6th April 2014 and is governed by the Tribunals Courts and Enforcement Act 2007 (TCEA) and the Taking Control of Goods Regulations 2013 (TCGR). CRAR must now be used for commercial property and the common law rights of distress is abolished.

Does Size Matter?

Author: Matthew Kilgannon

In Blackburn –v– Aldi Stores Limited the Employment Appeal Tribunal (EAT) considered whether an employer’s failure to provide an impartial grievance process could amount to a breach of the implied term of trust and confidence, and form the basis of a constructive dismissal claim.

Pre-Nups - A Delicate Balance

Author: Julie Watts

Pre-Nuptial Agreements aren’t just for the rich and famous. For many years now they have become more and more popular with couples from all backgrounds, particularly couples entering into a second marriage or those with inherited assets. However until now the status in divorce law in England and Wales of such agreements has been unclear.

Settling Employment Disputes

Author: Matthew Kilgannon

Employment disputes are inevitable and will often result in the employer seeking to terminate the employment relationship. As an employment lawyer, I advise both employers and employees on their duties and rights in settling employment disputes. For most people, the best way of resolving such disputes is through the use of a Settlement Agreement; an alternative solution that avoids long drawn out litigation and an Employment Tribunal.

Insolvency Rules 1986 – All change

Author: Chris Millar

The Insolvency Rules 1986 are likely to be replaced wholesale by new Rules later this year which are likely to provide, inter alia:-

KY Homes Bradford Limited v Patel

Author: Chris Millar

Section 1140 of the Companies Act 2006 permits a document to be served on a Company Director by leaving it at or by sending it by post to the person's registered address i.e. the address in the Register of Directors held at Companies House.

Madoff Securities International Limited (in Liquidation) v Steven Raven & Ors

Author: Chris Millar

Another set-back for Madoff recoveries.

Yang v The Official Receiver

Author: Chris Millar

If a liability order on which a Bankruptcy Petition was grounded, is set aside on appeal, this change in circumstance provides a ground for rescinding the Bankruptcy Order (under Section 375(1) IA 1986.)

HMRC v O’Rorke

This case related to the liability of a director for unpaid National Insurance Contributions (NIC) under Section 121C of the Social Security Administration Act 1992.

Arif v Anwar

Author: Chris Millar

The wife applied to annul the husband’s Bankruptcy Order.

Prest v Petrodel Resources Limited

Author: Chris Millar

The Supreme Court decided that assets were held by a company as bare trustee for the husband, and therefore could be brought into account, but also held that if a Court can find no other way to get at the assets in question where an individual seeks to evade a legal obligation by interposing a company, then the Court may be prepared to pierce the corporate veil.

Why You Should Review Contracts of Employment

Author: David Seals

Employees’ contracts of employment are important legal documents which should be periodically reviewed and kept up to date. There are various reasons why you might want to update and change contracts of employment.

Unexpected Absence

Author: Nicola O'Dwyer

It is likely that there will be occasions when an employee fails to attend the workplace owing to circumstances beyond his/her control. This type of non attendance may be caused by the following:...

Unfair Dismissal Update

Author: Matthew Kilgannon

In 2013, we saw a number of changes to the rules relating to unfair dismissal, which includes:...

False Self Employment

Author: Nicola O'Dwyer

HMRC has recently issued a consultation paper on false self-employment, due to increasing evidence that Intermediary Companies and Employment Businesses are being used to present individuals as self employed to avoid paying national insurance and tax. They also avoid the costs and risks associated with having employees.

Zero Hours - Useful or Abused?

Author: Laura Marchington

Zero-hours contracts have been the subject of much debate over recent months. This includes a lot of press coverage where these types of arrangements have alleged to have been abused. Figures from research carried out by the Chartered Institute of Personnel and Development (CIPD) estimates that around 3% of the workforce are working on a zero-hours contract; that is, approximately one million people.

New Property Fraud Alert Service

Author: Caroline Walton

In an effort to combat property fraud, the Land Registry are currently trialling a new alert service called 'Property Alert' which is aimed at helping the public to protect themselves against property fraud.

School Liable for Brain Damage?

Authors: SImone Horrobin and Matthew Kilgannon:

The recent Supreme Court decision of Woodland v Essex County Council highlights the exposure faced by Schools when engaging third parties to provide services. While the case involved a maintained School, the implications apply equally to independent Schools, indeed, part of the Court’s rationale included reference to fee-paying schools have greater exposure given the contractual nature of the relationship.

Tax Savvy Education Trusts

Author: William Edwards

For parents who are concerned about Inheritance Tax (IHT) following their own deaths, education trusts are a tax efficient means of both financing their children’s education and reducing the value of their estate for IHT purposes.

Confidential Discussions (Pre-Termination Negotiations)

As one of its many recent changes, the Government has now introduced a new right for employers, employees and their representatives to have confidential discussions regarding the termination of an individual’s employment.

Grounds for Divorce

A recent study shows that in 2013 unreasonable behaviour is cited in 47% of all divorces and adultery in just 15%. These figures differ from the 1970s when only 28% of divorce petitions were based on unreasonable behaviour and 29% based on adultery.

Shareholder Employees

Employee Shareholder status came into force on 1st September 2013. The Growth and Infrastructure Act 2013 introduced a new section into the Employment Rights Act 1996 which provides employers the opportunity to provide shares to an employee (the Employee Shareholder), in return for the employee giving up some of their employment rights.

Back to School

Dealing with your ex over summer holiday arrangements may have been difficult enough, but the start of the new school year with its busy school calendars could prove to be a bigger challenge.

More Confusion over Calculating Holiday Pay

In Neal -v- Freightliner Limited an Employment Tribunal considered whether overtime pay should be included when calculating statutory holiday pay.

Employment Law Reforms

There are three major changes to employment law which come into effect on 29 July 2013:

Cross Border Assistance

Those that attended the IP seminar earlier this year will have hopefully reflected upon the wider aspects of the “means” available to seek and obtain recognition and reciprocity of insolvency proceedings e.g. UNCITRAL, EC Regulation, common law and/or Section 426.

Woolworths Administration: protective awards should have been paid to all staff

In USDAW –v- Ethel Austin Limited (in administration) & another case, the EAT has given its long awaited decision regarding protective awards under TULRCA. This involved the cases of employees of the Woolworths and Ethel Austin Stores, the former of which went into administration in November 2008.

Who are “affected employees” for TUPE consultation purposes?

In I Lab Facilities –v- Metcalfe & others, the Employment Appeal Tribunal (EAT) considered who could be “affected employees” as defined in TUPE for the purposes of a complaint for failure under the information and consultation provisions.

Maximum Protective Award unfair where company faced insolvency

In AEI Cables Limited –v- GMB & others, the Emploument Appeal Tribunal (EAT) considered whether a maximum protective award under the Trade Union and Labour Relations (Consolidation) Act 1992 had been appropriate.

Validation Order

The High Court has dismissed an application for a validation order under Section 127(1) where the payment to be validated was in respect of solicitor’s fees that the insolvent company had incurred in attempting to compromise the petition debt, rather than in defending the winding-up petition.

EU Insolvency Regulation

The Insolvency Service announced that the UK has opted in to negotiations to amend Counsel Regulation (EC) 1346/2000 commonly known as the EU Insolvency Regulation.

Validation Order Refused

In RC Brewery Limited V HMRC [2013] EWHC1184(CH), the High Court has dismissed an application under Section 127 of the Insolvency Act 1986 for an Order validating the payment of solicitors fees incurred in acting for a company in seeking an injunction to restrain advertisement of a winding up petition.

De Facto and Shadow Directors

In a case involving a director’s disqualification, the High Court has summarised and restated the principle governing the definition of “shadow” and “de facto” directors.

New Security Registration Regime

On 6th April 2013 a new registration regime for security interests created by companies and LLPs registered in the UK came into force.

Tests for Insolvency - Eurosail

In BNY Corporate Trustee Services Limited V Eurosail-UK [2013] UKSC 28, the Supreme Court has clarified the meaning of the insolvency tests under Sections 123 (1)(e) and 123 (2) of the Insolvency Act 1986.

The Rescue Process and the Supply of Services

The Enterprise and Regulatory Reform Act 2013 provides the Government with powers to amend the existing provisions of the Insolvency Act 1986, Sections 233 and 372. These powers will ensure that companies and individuals involved in a rescue process do not forfeit the supply of essential goods or services or are forced to accept them on onerous terms.

Tenancy Deposit Scheme

On 14th June 2013 the decision in the matter of Superstrike Limited –v- Marino Rodriques was handed down by the Court of Appeal. The decision clarifies the situation in relation to tenant’s deposits, in particular deposits taken for an Assured Shorthold Tenancy before the 6th April 2007 and where the tenancy continues after the term as a Statutory Periodic Tenancy (SPT).

Are Lawyers Different by Design?

Downs Solicitors LLP have recently been recruited onto the Design Business Association's Experts Register.  

Lifting the Moratorium

In the case of Gaardsoe v Optimal Wealth Management Limited [2012] EWHC 3266 the High Court considered if it had power to permit an action that was commenced in breach of the moratorium as the claimant did not have either Court sanction or the consent of the administrators when the action was commenced.

Doctrine of Marshalling

This is a little understood equitable principle but in appropriate circumstances it can be of great value to a lower-ranking secured creditor.

Recovery of Trustee's Costs

Recovery by a Trustee of his costs can often be problematic. This may be particularly so where the bankrupt has managed to obtain an annulment.

Rubin and New Cap

In the final analysis, it is considered that these cases should not be a fundamental problem for IP’s as the issues highlighted can be avoided. Indeed, the recent case of “Bilta (UK) Limited v Nazir” [2012] shows this issue in stark contrast where the High Court was willing to apply the scope of section 213 in an extra-territorial context.

What is, however, probably more relevant in the international context, is the proposed amendments to the Regulation. Amongst these are:-

To include “hybrid” (debtor in possession e.g. CVA) and “pre-Insolvency” schemes (restructuring e.g. Schemes of Arrangement) within the scope of the Regulation.
Foreign Creditors are given the right to challenge a decision regarding a company’s COMI.
Secondary proceedings will no longer have to be winding up proceedings, and the Court will be obliged to consider the views of the office – holder in the main proceedings.
There will be a greater obligation on office-holders to consult and coordinate in cases involving the Insolvency of a group of companies in different jurisdictions.
There is to be an internet-based register available to the public regarding insolvencies in each EU Jurisdiction, probably via the European e-Justice Portal (ec.europa.eu.civiljustice)
On 15th April 2013 the UK announced its intention to opt-in to the proposed amendments albeit that it is understood that Schemes of Arrangement will be excluded from the amendments to the Regulation.

For further information, please contact Chris Millar either by telephone on 01306 502225 or by email c.millar@downslaw.co.uk

Dismissals by Administrator Were Unfair under TUPE

In Kavanagh and others v Crystal Palace FC (2000) Ltd the Employment Appeal Tribunal found that an employment tribunal had erred by finding that dismissals by an administrator were fair because they were for an ETO reason.

Ways to Help Your Care Home Business Grow

Are you are turning residents away because you don’t have enough beds?  Extending your care home could be a cost effective option. However, there are many things to consider before embarking on any building project.

Claims to the NI Fund: Insolvency is a single event

In the Secretary of State for Business –v- McDonagh & others, the Employment Appeal Tribunal (“EAT”) had to consider when “insolvency” occurred under the Employment Rights Act 1996 (“ERA”) in respect of claims for arrears of pay and holiday pay from the National Insurance Fund (“NIF”).

Same Sex Marriages and Pre Nups

With the passing of The Marriage (Same Sex Couples) Bill, which will allow same-sex couples to marry, an important consideration is what happens if they separate and/or divorce?  A pre-nuptial agreement between same-sex couples will help to prevent ugly breakups.

Prescribed Information Needed for Tenancy Deposit Schemes

A recent Court of Appeal decision acts as an important reminder that a landlord must actually give a tenant all the information prescribed by a tenancy deposit scheme (TDS) and that it is not enough that the information is freely and easily available.

More Flexibility For Parents - Are You Ready?

Towards the end of 2012, the Government announced its intention to allow more flexible and family friendly working practices.

Promoting Employees - How Restrictive are Restrictive Covenants?

Restrictive covenants that limit what an employee can do after leaving an employer are extremely difficult to get right, especially non-compete clauses, where the employee is limited in competing with the business for a fixed period after termination.

Intellectual Property Update

Software Licences - who game is it?

Tenancy Deposit Scheme Rules

In April 2007, measures were introduced under the Housing Act 2004 which meant that any Assured Shorthold Tenancy (AST) deposit had to be paid, by the landlord, into one of three Government approved holding schemes within 14 days of receipt and the landlord had to provide the tenant with certain prescribed information regarding the deposit within the same time period. 

Arbitration and Mediation

Whilst Court proceedings are often contemplated and commenced in order to resolve civil disputes between private individuals or companies..,

Gas Safety Reminder

Landlords (and Licensors) of domestic property must comply with the provisions of the Gas Safety Regulations 1998 which includes:

Squatting is now a criminal offence

From 1 September 2012 squatting in a residential building is an offence, punishable by a maximum prison term of up to six months, a maximum fine of £5000, or both.

Sickness and Annual Leave – Recent European Court of Justice Decision Blatantly Favours Workers

In the case of ANGED v FASGA, the European Court of Justice deliberated on whether a worker was able to take leave at a later date when it fell during a period of statutory leave.

Redundancy - One to Watch Out For

If there is a reduction in hours of work does it amount to a redundancy? This was the burning question before the Employment Appeals Tribunal in the case of Packman t/a Packman Lucas Associates v Fauchon.

Fidelity and Fiduciary Duties

In the recent case of Ranson v Customer Systems Plc the Court of Appeal set the parameters of when an employee owes his employer fiduciary and fidelity duties.

Enterprise and Regulatory Reform Bill

On Friday 2nd May 2012, the Queen announced the Government’s legislative agenda for the next year. The focus is introducing new measures to boost the UK economy. Two Bills were specifically mentioned: The Enterprise and Regulatory Reform Bill aimed at “creating the right conditions for economic recovery” and The Banking Reform Bill, which will “foster financial stability and a more resilient banking sector”.

Does TUPE Apply to Landlords After the Assignment of a Pub Lease?

A recent case in the Employment Appeal Tribunal (EAT) has stated that TUPE (the Transfer of Undertakings (Protection of Employment) Regulations 2006) does not apply to the assignment of a lease unless the economic entity retains its identity.

When do Landlords have priority rights in an administration?

For the past few years there has been much in the news about the use of administrations as the favoured route for saving businesses and jobs. 

Recent Changes in Employment Law

Unfair Dismissal

On 6th April 2012, the qualifying period for employees to bring a claim for unfair dismissal in the Employment Tribunal increased from one to two years. This rule is only applicable to employees that commence employment on or after the 6th April 2012. Anyone employed before this date will only have to accrue one year’s service before bringing a claim for unfair dismissal.

The New EPC Rules - How to Avoid a £5000 Fine

The coalition Government’s plans to be seen as the “greenest Government ever” took a step closer with the introduction of a number of new directives.

VAT Increase for Listed Building Alterations

If you own or are developing a listed building, recent changes announced in the Budget will affect you whether the property is residential or commercial as the zero rating currently available for approved alterations to protected buildings (both residential and charitable buildings) will be removed with effect from 1 October 2012.

Tenancy Deposit Protection - Time Is Running Out

If you are a landlord of residential property and you let it out under an assured shorthold tenancy, you should note that the rules relating to the registration of the rent deposit changed on 6 April 2012. You must ensure that, in respect of all rent deposits that you currently hold, they are correctly registered before 6 May 2012, and that you have sent the necessary certificate and the information prescribed by the legislation to all parties who are entitled to receive it within 30 days of receipt of the deposit.

The National Planning Policy Framework

Following the Government’s recent Budget announcement, the NPPF came into force on 27 March 2012.

Redundancy - EAT Decision Favours Employers

In Samsung Electronics (UK) Limited –v- Monte-D’Cruz, the Employment Appeal Tribunal (EAT) considered, amongst other things, whether following a restructure of employment roles an employer was compelled to offer a vacant post to an otherwise redundant employee despite him performing poorly at interview for the post.

How Secure Is Your Landlord?

As a pub tenant you may be leasing from a pubco or other entity, who themself holds a lease from the property owners, i.e. the freeholder, thereby making you “the sub-tenant” who is paying rent to an intermediate landlord, who pays (not necessarily the same) rent to the freeholder.

Update on Pre-Packs

In an announcement which will be welcome by the insolvency profession DBIS has said that it does not intend to legislate to impose restrictions on the use of pre-pack sales in any insolvency procedure.

Out of court administration

The line of cases which began last year with Minmar (929) Limited Khalastchi ([2011] EWHC 1195 (CH)) when the High Court decided that an out-of-court appointment by directors was invalid because of the failure to give notice to the Company, i.e. its shareholders, has had three additions.

Bankruptcy Cases - Property

Some interesting recent cases and reminders:-

Employees protected by TUPE in administration cases

Key2Law (Surrey) Ltd v De'Antiquis [2011] EWCA Civ 1567

TUPE 2006 – BIS call for evidence

The BIS has issued a call for evidence seeking views on the effectiveness of TUPE 2006.

Business Owners - How You Can Save Tax

Running a business in today’s world can be vastly time consuming,

Break Clause - Late Payments Could Cost You Dear

If your Lease contains a break clause then you have the right to terminate before the end of the term.  But beware! 

Finance Act 2012 - Capital Allowances

Capital Allowances are a form of tax relief which can be set against Income or Corporation Tax. They are based on the capital expenditure incurred on the provision and installation of certain assets within a commercial building.

The Government's Proposals to Boost the Housing Marketing

On 1 February 2012 the Minister for Housing and Local Government made a written statement updating the Government’s action on housing following the publication of its housing strategy in November 2011.

Good news for employers - new rules regarding unfair dismissal

The Government has issued draft legislation on it’s proposal to increase the qualifying period to claim unfair dismissal from one year to two. The Order is succinctly known as The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012, and can be viewed here http://www.legislation.gov.uk/ukdsi/2012/9780111519974

Protect Yourself from Property Fraud

The Land Registry has reported major issues with fraud involving properties which are not occupied by the owner. If you own property which you do not occupy personally we can advise you on the ways in which you can protect yourself from becoming the subject of such a fraud.

First Time Buyer SDLT Relief To End

Currently if you are buying a residential property as your main residence for a price not exceeding £250,000 and you are a first time buyer, you may not have to pay Stamp Duty Land Tax on the purchase price. This concession expires on 24 March 2012, with the effect that, any purchase with an effective completion date of 25 March 2012 or later cannot benefit from the relief, even if the contract for the purchase of the property is dated before that date. The relief gave a saving of £2,500 on a house purchase of £250K.

Section 25 Notices - Are you due to renew?

I have been contacted by a client in a complete panic asking me to get him out of a hole. He had a lease of business premises within the protection of the Landlord & Tenant Act 1954, the contractual term of which came to an end on 31 December 2011. In June of last year he was served with a non-hostile Landlord’s Section 25 Notice terminating his tenancy as at 31 December 2011. The Notice stipulated the terms upon which the Landlord was prepared to agree a renewal. My client had no issue with those terms and so simply filed the Notice, assuming the renewal would just take its course. Sadly, he didn’t advise me of receipt of the Notice and now finds himself in the position of having received a letter from the Landlord’s Solicitors demanding vacant possession in two weeks' time.

Living Together - Are you properly prepared?

There has, for a long time, been a common misconception amongst non-married couples who live together, (especially if they have done so for a long time) that they become a common law Husband and Wife and have the same rights as married couples. This is false.

Long Term Sickness

To help combat the level of sickness by employees, approximately 140 million days per year, the Government called for a major review of the sickness absence system in February 2011.

Localism Bill 2010-11 Receives Royal Assent

On 15 November 2011 the Localism Bill 2010-11 was granted Royal Assent.  The Localism Act 2011 will introduce fundamental reforms in many aspects of Local Government.  These will include:-

Ministry of Justice to Criminalise Squatting in Residential Buildings

The Ministry of Justice (MOJ) has published a response to the Consultation Paper “Options for Dealing with Squatting”.

Neighbourhood Planning Regulations

On 13 December 2010 the Coalition Government presented the Localism Bill 2010-11 to Parliament.

CIL Reform

The Department for Communities and Local Government (DCLG) is currently consulting on proposals to reform the Community Infrastructure Levy (CIL).  Draft Regulations to accompany the consultation have also been published. 

Why do I need a Will?

If you do not have a valid Will the law sets out who gets your money, your property and all your personal effects.  You would have no say over what happens to your assets when you die and this can cause difficulties for those you care about most; therefore, everyone should have a Will.

The Agency Workers Regulations 2010

The Regulations are intended to give effect to the Temporary Agency Workers Directive (the Directive) and they came into effect on 1 October 2011. The aim of the Directive is to provide basic working and employment conditions for assigned workers that are no less favourable than if they had been recruited directly by the hirer.

"Protected Conversations"

The Government has announced proposals that will cause the biggest shake-up of employment law for decades.

Foreign Judgments : Attachment of Assets in England

What is the general nature and effect of judicial measures available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgments to be obtained (“attachments”)?  Freezing property in place?  Placing it in the custody of a third party, such as a court official, sheriff or marshall?

Presumption in Favour of Sustainable Development

The Department of Communities and Local Government (DCLG) has now published a draft presumption in favour of sustainable development. The presumption states:-

Law Commission: Easements, Covenants and Profits A Prendre

The Law Commission has published its final report containing its recommendations to simplify, modernise and improve the law of easements, covenants and profits a prendre.  on 8 June 2011.

Co-habitation Agreements. Do you need one?

There is a common misconception that once an unmarried couple have lived together, (especially if they have done so for a prolonged period of time) they become a common law Husband and Wife and acquire the same rights as married couples. This is false.

Feed-In ("FIT") Tariff Leases

The Feed-In Tariff (FIT) scheme which was introduced by the Government on 1 April 2010, promotes the widespread uptake of a range of small-scale renewable and low carbon electricity generation technologies.

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