New EAT Practice Direction

New EAT Practice Direction

The Employment Appeal Tribunal (EAT) has issued a new practice direction, The Practice Direction (Employment Appeal Tribunal – Procedure) 2018. Amongst the noteworthy changes are the following: –

1. The time for a Respondent to lodge its Answer has been increased from 14 days to 28 days.

2. All reference to fees has been deleted.

3. All skeleton argument must now be lodged 14 days before the hearing.

4. Where an Appellant is unrepresented but the Respondent is represented, the Respondent could/should normally prepare the Bundle.

New Pay Regulations on Executive Pay

New Pay Regulations on Executive Pay

On 1st January 2019, new regulations came into force meaning that the UK’s largest companies will have to disclose their top executives’ pay and explain the gap between this pay and their average worker. The regulations make it a legal statutory requirement for UK listed companies with more than 250 employees to disclose annually the ratio of their CEO’s pay to the median, lower quartile and upper quartile pay of their UK employees. Companies will need to start reporting on this in 2020. These reforms form part of the government’s action to upgrade corporate governance in the UK and the reforms follow support and calls from investors and shareholders for companies to do more to explain how executive pay aligns with wider company pay.

Partner not paying child maintenance? – Government’s new powers to remove passport

Partner not paying child maintenance? – Government’s new powers to remove passport

On 14 December 2018, the Government gained new powers to disqualify a non-resident parent (i.e. a parent who does not have the child or children living with them for the majority of time) from holding or obtaining a passport. These powers may be exercised where the non-resident parent is not paying child maintenance.

 

There are various other legal requirements that must also be met before a disqualification application can be made, but the threat of passport removal is likely to be a powerful deterrent to ex-partners refusing to pay what is owed.

Construction Case Update – Adjudication – Part 6 of 2018

Construction Case Update – Adjudication – Part 6 of 2018

The Enforcement of Adjudicators’ Awards under the Housing Grants, Construction and Regeneration Act 1996: Part 6 of 2018
Kenneth T. Salmon and Katy Ormston

This article forms Part 6 of the series of articles continuing the reporting and review of cases on the enforcement of adjudicators’ awards begun in the Journal of the Chartered Institute of Arbitrators.

107772.001 SH Construction Case Booklet

This document is available to be read on full screen or alternatively can be downloaded or printed using the icons at the bottom of the publication.

This Part 6 reports on the following developments and cases:

S&T(UK) Limited v Grove Developments Limited [2018] EWCA 2448
Enforcement—Enforcement of adjudicator’s decisions – Interim payments – Pay Less Notices – Liquidated Damages

Birmingham City Council v Amey Highways Ltd TCC (unreported judgment 04 October 2018), Stuart-Smith J.
Enforcement—Enforcement of adjudicator’s decision – Milestone payments

Ealing Care Alliance Ltd v London Borough of Ealing [2018] EWHC 2630 (TCC).
Enforcement – Enforcement of Adjudicator’s Decisions – Declarations Sought – Stay of proceedings

Charles David Hoyle v B.A.K. Building (Contracts) Limited [2018] EWHC 2802 (TCC).
Jurisdiction – Bias
Charles David Hoyle v B.A.K. Building (Contracts) Limited

BSW Building Services Ltd v Adur District Council TCC (unreported judgment 30 October 2018), Roger Stewart QC.
Natural Justice

Synergy Gas Services Limited v Northern Gas Heating Limited [2018] EWHC 2060 (TCC).
Natural Justice

Dr Cyril Chern v (1)Apilosa Corporation (2) AR Architecture Limited [2018] EWHC 3025 (TCC).
Transfer of Proceedings – Court’s powers to transfer hearings

Q. My mother, a widow, was diagnosed with dementia some time ago and her condition has now worsened. She has no Lasting Power of Attorney document in place and I am concerned as to how I will sort her finances out – what should I do?

A.   Although it is always wise to ensure you have a Lasting Power of Attorney in place should it ever be required, many people never get around to sorting it out until it is too late and they find they do not have capacity to manage their financial and property affairs effectively or at all.

Fortunately, all is not lost, and an appropriate person is able to make an application for what is known as a Deputyship Order through the Court of Protection (itself part of the work of the High Court in England & Wales). An ‘appropriate person’ would typically be a family member but if no-one is willing or perhaps suitable to apply to the Court of Protection then someone else could apply and be appointed and this typically may be a professional person who specialises in undertaking the duties of being a Deputy in the management of an individual’s finance and property.

The process of being appointed as a Deputy to manage another person’s affairs can be a little complicated and does involve time and administration skills amongst others and it is important to ensure you receive the best and most appropriate advice from the outset.

At Slater Heelis we have a dedicated team who deal with all aspects of Court of Protection work and also one of our team is a Court appointed professional Deputy and so is available to work with families not able to undertake the duties themselves or where perhaps the Court requires a professional Deputy to take on the role. Please contact our Team in the Private Client Department for further details.

Construction Case Update – Adjudication – Part 5 of 2018

Construction Case Update – Adjudication – Part 5 of 2018

The Enforcement of Adjudicators’ Awards under the Housing Grants, Construction and Regeneration Act 1996: Part 5 of 2018
Kenneth T. Salmon and Katy Ormston

This article forms Part 5 of the series of articles continuing the reporting and review of cases on the enforcement of adjudicators’ awards begun in the Journal of the Chartered Institute of Arbitrators.

Construction Case Update - Adjudication - Part 5 of 2018

This document is available to be read on full screen or alternatively can be downloaded or printed using the icons at the bottom of the publication.

This Part 5 reports on the following developments and cases:

Raymond Jeffrey (t/a Premier Construction Services) v David Steene [2018] EWHC 2597 (TCC)
Enforcement—permission to continue proceedings under s.252 Insolvency Act 1986

Maelor Foods Ltd v Rawlings Consulting (UK) Ltd [2018] EWHC 2597 (TCC)
Jurisdiction—more than one contract—adjudicator’s power to determine own jurisdiction

Maelor Foods Ltd v Rawlings Consulting (UK) Ltd [2018] EWHC 2597 (TCC)
Stay to Arbitration—whether ‘dispute’ was “in connection with” enforcement

BN Rendering Ltd v Everwarm Ltd [2018] EWHC 2356 (TCC)
Stay of execution—pending provision of guarantee bond

Assesmont Ltd v Brookvex IMS Ltd [2018] EWHC 2629 (TCC)
Stay of execution—relevance of fraud not raised in adjudication

 

Update on GDPR Fines

Update on GDPR Fines

According to research carried out by Reynolds Porter Chamberlain, average fines from the Information Commissioner’s Office (ICO) rose from £73,000 in the year ending September 2017 to £146,000 in the year ending September 2018. The total value of fines increased by a huge 24% to £4.98m (previously £4m the year before). The rise in fines is due largely to the introduction of new stiffer penalties under the General Data Protection Regulation (GDPR) regime, which was introduced in May 2018. In accordance with this regime, potential fines have significantly increased to €20m or 4% of annual global turnover (whichever is higher). The ICO’s penalties were previously capped at £500,000. The ICO has said that they will not suddenly start imposing huge fines however with the cap gone, the risk to businesses of a significant fine for data protection breaches is a real one and businesses are being urged to invest in compliance. Amongst those businesses already issued with fines is Car Phone Warehouse, which faced a fine of £400,000 in January 2018 for failing to adequately protect the data of customers and employees from a cyber attack in 2015.

Family Law Post-Brexit

Family Law Post-Brexit

As we are all well aware, the United Kingdom will be leaving the European Union on 29 March 2019. There are ongoing negotiations being undertaken by our government but there is of course the risk that the UK will leave without having reached agreement with the EU.

Should such agreement not be reached, the UK will not have signed a withdrawal agreement. The planned transitional period should a deal be achieved will also not take place. This may have the effect that in many areas of law, cooperation between the UK and the EU member countries will cease and therefore the applicable legal regime in many practice areas will change.

Should no deal take place, this will cause change for family law. There is some ambiguity at this stage but the following points may apply.

In terms of abduction, the 1980 Hague Convention will still provide a mechanism for the return of children.

At present, matters involving children are dealt with by the country in which the child is habitually resident. This is governed by EU law. Therefore post Brexit, the legislation from the country in which the child resides will apply.

Also at present, if a judgment is made regarding a child, this judgment is recognised and enforceable in all other EU member states. After Brexit, it is not clear how the issues relating to enforceability will apply. It may therefore be the case that someone who obtains an order in England and Wales may well have to obtain a mirror order in the other country.

Unless further guidance is produced, family law will apply on a national basis and the reciprocal elements of EU law will no longer exist. It may be necessary to contact a lawyer in the other country to find out whether any bilateral treaties which predate EU membership may exist.

There is a risk that parallel cases may be taken in multiple jurisdictions as the status of ongoing cases is very much unclear as the rules governing enforceability of any case decided after 29 March 2019 will no longer have effect.

The true ramifications of a post Brexit world are yet to be fully understood. Family law will of course continue but perhaps, on a very different international path to what people have become accustomed to.

Squatters on your property?

Squatters on your property?

Having squatters take over a property can be a landlord’s worst nightmare.

And following the criminalisation of squatting in residential property in 2012, the risk to commercial landlords is growing all the time.

Clearly, prevention is better than cure and there are a number of steps to take to ensure your property is as safe as it can be to deter squatters taking up residence.

If they do gain access, however, there are two routes to remove squatters from commercial property; an interim possession order or the ‘standard’ route.

I have discussed the preventative measures along with both of the removal options and implications with property news website Place NW. You can read the full article here.

What constitutes harassment in the workplace?

What constitutes harassment in the workplace?

In the case of Evans v Xactly, the Claimant was employed by the Respondent as a sales representative for just short of one year when he was dismissed. He brought a series of claims to include discrimination, victimisation on the grounds of disability and race and harassment.

The Tribunal rejected these claims and found that the Respondent’s reason for dismissal (poor performance) was genuine.

The Claimant had also brought a claim for harassment on the basis that he had been called a “fat ginger pikey” amongst other names. The Claimant was diabetic and sensitive about his weight and had strong links to the traveller community. Whilst the Tribunal concluded the comments were potentially discriminatory and could amount to harassment, they considered the context in which the comments were made, the office environment and the nature of the relationships between work colleagues. The Claimant had not complained at the time the remarks were made, did not appear to be upset by them and it was found that he had reciprocated by making derogatory comments to colleagues.   In addition the Claimant was unable to demonstrate a link between the comment, his medical condition and only one of his colleagues knew of his links to the travelling community. The tribunal therefore concluded that the treatment did not meet the harassment definition in s26 of the Equality Act 2010.

The Claimant appealed the decision to the Employment Appeal Tribunal but they agreed that the Tribunal was entitled to come to this conclusion, given that harassment claims are highly fact sensitive and context specific.

This case provides a useful reminder that the context in which alleged acts of harassment take place is key. When considering whether a derogatory comment amounts to harassment under section 26 of the Equality Act 2010, the context in which the comment was made and the nature of the relationship between the claimant and the maker of the comment should all be taken into consideration. This decision does not suggest that employers can avoid liability for the conduct of and statements made by nor rely on accepted office culture as justification for potentially discriminatory or harassing comments. Such an approach could give rise to claims from those in the workplace who are not active participants in ‘banter’ and who feel that they have been harassed at work as a result of the environment created by others. Employers would be better served by actively managing the behaviour of staff who do not act in a professional manner in the workplace.

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