The dangers of DIY Wills

The dangers of DIY Wills

If you choose to either draw up your own will or use an “off the shelf” DIY will kit it will undoubtebly cost you less than had you used the services of a solicitor. However, it is quite possible that the cost saving is going to be the only benefit of taking this approach. In fact, it could be risky, for a number of reasons.

The most common reason is errors or ambiguities in the will. If the will isn’t perfectly clear this can lead to disputes which in turn can lead to property being left in a state of uncertainty, a loss of security or income for loved family members and a whole lot of stress, not to mention avoidable legal costs.

Sometimes the will won’t be even valid at all, particulary if the rules following how a will should be signed and witnessed aren’t followed correctly.

Your will is a personal matter, to be effective your own personal and financial circumtances have to be considered. A DIY or homemade will will rarely be personalised to you or provide flexibility should your circumstances change.

Doing it properly is worth the extra cost.

BA Data Breach

BA Data Breach

British Airways has promised to compensate customers after 380,000 payments cards have been compromised after what the Company are calling a “sophisticated” theft of data from the BA website and app over a two week period from 10.58pm on 21 August 2018 to 9.45pm on 5 September 2018.

The data breach was identified, according to BA, when “a third party noticed some unusual activity and informed us about it”. The airline informed the police and the Information Commissioner.

BA has contacted all customers who made transactions during this period to ensure they contact their card providers and follow instructions as to how to manage this breach of data.

This data theft is one of the most serious to hit a UK company and will deal another blow to BA’s reputation following an IT incident which affected thousands of passengers in May 2017.

The Information Commissioners Office is investigating the breach and the airline could potentially be fined if it is found that they have failed to comply with their security obligations.

Construction Case Update – Adjudication – Part 3 of 2018

Construction Case Update – Adjudication – Part 3 of 2018

The Enforcement of Adjudicators’ Awards under the Housing Grants, Construction and Regeneration Act 1996: Part 3 of 2018
Kenneth T. Salmon and Katy Ormston

This article forms Part 3 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 3 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 3 reports on the following developments and cases:

Victory House General Partner Ltd, Re company [2018] EWHC 1143 (Ch) Morgan J.
Enforcement of judgment debt based on adjudicator’s decision—use of winding up petition

Pentland Investments Limited v Aitken Turnbull Architects Limited [2018] SC EDIN 16.
Jurisdiction – Correct interpretation of the Scottish Scheme

(1) M Hart Construction Ltd and (2) P K Maintenance Ltd v Ideal Response Group Ltd [2018] EWHC 314 (TCC) Jefford J., DBE, 7 March 2018.
Jurisdiction—disputed oral novation—effect of misdescription in adjudication notices

Dacy Building Services Ltd v IDM Properties LLP [2018] EWHC 178 (TCC).
Jurisdiction—oral contracts

E7 Building Services Ltd v R G Carter Cambridge Ltd TCC (unreported 3 May 2018) Alexander Nissen QC.
Natural Justice

Gosvenor London Ltd v Aygun Aluminium Ltd [2018] EWHC 227 (TCC) Fraser J., 28 March 2018.
Stay of execution—effect of allegation of fraud— addition of new (g) to the Wimbledon factors

Energo A.S. v Bester Generacion UK Ltd [2018] EWHC 1127 (TCC) Stuart-Smith J., 13 April 2018.
Stay of execution—financial position of both parties

Update- Time Limit for submitting unfair dismissal claim

Update- Time Limit for submitting unfair dismissal claim

In the case of Miah v Axis Security Services Limited, the Employment Appeal Tribunal (“EAT”) considered whether the time limit for submission of an unfair dismissal claim would be automatically extended where this expired on a non-working weekend day. In this case, Mr Miah’s time limit for submitting his unfair dismissal claim expired on a Sunday. He in fact submitted his claim the following day, on the Monday. He argued that the 2013 Tribunal Rules gave him an extra day to bring his unfair dismissal claim. The relevant Tribunal Rule provides that where an act is required to be done on a day other than a working day, the act is done in time if it is submitted on the next working day. “Working day” is defined as any day except for a Saturday, Sunday, Christmas Day, Good Friday or a Bank Holiday. The EAT examined the relevant Tribunal Rules and decided that this particular Rule only applied to time limits prescribed by the Rules themselves. The time limit in question (for unfair dismissal) is prescribed by the Employment Rights Act 1996, rather than the Tribunal Rules. Therefore, this time limit was unaffected by the Tribunal Rules and Mr Miah’s claim was out of time.

Update – Free Movement and Brexit

Update – Free Movement and Brexit

The UK is currently scheduled to leave the European Union on 29 March 2019 and a transitional exit period is envisaged ending on 31 December 2020. There is still a considerable amount of uncertainty concerning the rights of EU nationals to continue working in the UK post-Brexit and much will depend on whether we leave with a deal or not.

Up until 29 March 2019, EU nationals have the right to live and work in the UK. If no deal is concluded by this date, the UK ceases to be a member of the EU and the right of freedom of movement will no longer apply.

Part 2 of the draft withdrawal agreement of 19 March 2018 provides the clearest indication of citizens’ rights post-Brexit but it should be noted that this is in draft only at this stage. So far, the following has been agreed: –

  1. There will be an implementation period from 29 March 2019 to 31 December 2020 during which freedom of movement will continue to apply.
  2. EU citizens who have resided in the UK lawfully for 5 years by 31 December 2020 will be able to stay indefinitely under the new “EU exit settlement scheme”.
  3. Those with fewer than 5 years residency in the UK by 31 December 2020 will be entitled to “temporary status” until they acquire the necessary 5 years to obtain EU exit status. They can continue working during this period.
  4. The deadline for submitting applications for EU exit temporary and settled status will be no more than 6 months after 31 December 2020.
  5. Successful applications will be granted indefinite leave to remain.

It should be noted however that despite this currently agreed position in relation to the freedom of movement, the Government has been quick to point that “nothing is agreed until everything is agreed.” This simply therefore gives an indication of what freedom of movement may look like post-Brexit if an agreement is reached.

Sleep-In Carers and National Minimum Wage

Sleep-In Carers and National Minimum Wage

In July 2018, the Court of Appeal reached a decision in the case of Royal Mencap Society v Tomlinson-Blake. The case concerned the National Minimum Wage (“NMW”) and sleep-ins and finally clarified an area of law causing much difficulty for the care sector, ruling that, although technically on call, carers who sleep at a client’s house are not entitled to NMW when they are asleep.

By way of background, under Regulation 32 National Minimum Wage Regulations 2015 (“NMWR”), a worker who is not actually working may be treated as working (and therefore entitled to be paid NMW) if they are available (and are required to be available) at or near a place or work for the purpose of doing such work, unless; –

  • the worker is at home, or
  • the worker is asleep at or near the place of work at facilities provided by the employer.

However, in the case of British Nursing Association v Inland Revenue (National Minimum Wage Compliance Team) [2002], the Court of Appeal noted that the above two exceptions only apply where the worker is “available for work” rather than actually working. In this case, nurses were providing a night service by telephone from home and it was held that they were doing actual work throughout the whole shift (even when sleeping) and were not merely available for work between calls. The work done was identical to work done during the day from the employer’s premises.

In the most recent case of Royal Mencap Society v Tomlinson-Blake, Mrs Tomlinson-Blake was a care worker and was contractually obliged to spend the night at or near her workplace.  It was expected that she would sleep for most of the period but could be woken if her assistance was required.   On this basis it was held that Mrs Tomlinson-Blake was to be treated as “available for work” during her sleeping shift rather than actually working and she was only entitled to the National Minimum Wage for the hours during which she was required to be awake for the purpose of working.

The main point to note in the Royal Mencap Society case was that the “essence of the arrangement is that the worker is expected to sleep”.  If the arrangement is that the worker is not expected to sleep then their whole shift would be treated as them working and therefore the NMW would apply.

The practical effect of this judgment is that workers who sleep at a residential care home or similar place of work while on call for emergencies are merely available for work and therefore not entitled to the NMW until actually called upon. Care workers can therefore be distinguished from other jobs such as with night watchman who may have significant duties at the beginning and end of their shifts and only a mattress in an office rather than a proper bed in an area set aside for sleeping.

Therefore, and as the case of British Nursing Association still applies, employers will still need to consider whether their care workers expected to sleep and whether proper beds are provided for this sleep before ceasing payment of NMW in such cases.

To this end, in late 2017, HMRC introduced the Social Care Compliance Scheme (“the Scheme”), which related to underpayment for working time while carrying out overnight sleep-in shifts in the social care sector.

The Scheme is for employers who employ workers classed as “working” during sleep-in shifts and who have not paid the NMW to workers for any time spent “working”.  Once an employer joined the Scheme it has to; –

  • Review the amount paid to its workers for sleep-in shifts with the help of HMRC
  • Return a declaration to this effect within 12 months of receiving it or by 31 December 2018, whichever is sooner
  • Pay the workers any underpayment for sleep-in shifts within 3 months of returning the declaration or by 31 March 2019, whichever is sooner
  • Pay the workers any other National Minimum Wage underpayments discovered before the declaration is returned
  • Pay any additional tax or NI contributions that result from this underpayment
    Ensure that workers are paid at least the NMW for sleep-in shifts from the date the underpayment is discovered
  • Keep records of how underpayments were decided and calculated.

HMRC issued some guidance on whether sleep-in shifts should be considered working time, for which workers are entitled to be paid NMW. The guidance stated that the worker is likely to be classed as working throughout a sleep-in shift if any of the following applies; –

  • An employer is required by law to have the workers on the premises overnight
  • An employer requires them to be present on the premises overnight
  • The workers’ contract does not specify the time they have to work and any period that they are allowed to sleep during a night shift – regardless of whether the employer provides sleeping facilities or not
  • The workers’ contract specifies the time they have to work and any period that they are allowed  to sleep during a night shift but the employer doesn’t provide sleeping facilities

It remains to be seen whether HMRC will now review the Scheme and the guidance provided to employers in light of the Royal Mencap Society case.

Dismissal for Failure to Prove Right to Work

Dismissal for Failure to Prove Right to Work

In the case Afzal v East London Pizza Ltd t/a Domino’s pizza, the Employment Appeal Tribunal (“EAT”) examined whether or not an employee who had been dismissed for failure to provide evidence of his entitlement to work in the UK was entitled to a right of appeal against his dismissal as part of a fair process.

In this case, Mr Afzal, a Pakistani national, was employed by the Respondent as Acting Assistant Manager. Having married a European national, he acquired leave to work in the UK until 12 August 2016. After that point, he could apply for a document evidencing his right to permanent residence that would continue his right to work. He needed to apply by 12 August and if he did so, he was entitled to work whilst the application was being considered. The Respondent reminded Mr Afzal on a number of occasions prior to 12 August 2016 that he needed to provide evidence that he had made the relevant application. It was not until 12 August 2016 that Mr Afzal sent the Respondent an email purporting to contain evidence of his application. The Respondent was unable to open the attachment and therefore sent Mr Afzal a notice of dismissal with no right of appeal, which was received by Mr Afzal on 15 August 2016. Mr Afzal subsequently provided that the Respondent with satisfactory evidence of his right to work and the Respondent at that point, offered to re-engage him but his continuity of employment would be broken and he would not be entitled to back pay between his dismissal and re-engagement.

Mr Afzal complained to an Employment Tribunal (“ET”) that he had been unfairly dismissed by the Respondent.

The ET found that Mr Afzal’s dismissal was for “some other substantial reason” (“SOSR”) and considered that it was reasonable for the Respondent to have acted decisively on 12 August 2016 for fear of exposure to criminal and civil penalties. The case therefore hinged on the question of Mr Afzal not having been given the right to appeal against his dismissal by the Respondent. Whilst the ET accepted that it was generally good practice to offer a right of appeal, it found that in this case, there was nothing to appeal against. In these circumstances, the ET concluded that it was not unfair to have failed to offer a right of appeal to Mr Afzal against his dismissal. Mr Afzal’s unfair dismissal claim was therefore dismissed.

The EAT disagreed. It concluded that the provision of an appeal against dismissal is “virtually universal” and is recommended by the ACAS Code. It did accept that there would be cases where an ET could conclude that a dismissal was fair despite the absence of an appeal but these cases would be exceptional and will be where an appeal would have been futile and could not have altered the decision to dismiss. The EAT concluded that in this case, the ET was wrong to conclude that there was nothing to appeal against. If an appeal had been offered, there were various ways in which Mr Afzel could have established his right to work for example by providing documentation demonstrating his in-time application or the Respondent might have accepted the word of a solicitor. Had Mr Afzal’s right to work been established, there was no reason why he should not have been reinstated. The EAT therefore allowed Mr Afzal’s appeal. The matter was remitted to the ET.

This case demonstrates how important it is for an employer to follow a fair process, including a right of appeal, in dismissal cases.

The marriage is over all but in name

The marriage is over all but in name

The recent ruling of the Supreme Court highlights the urgent need for divorce law reform in England and Wales.

The effect of the court’s judgement in the case of Owens –v- Owens is that Mrs Owens  must stay married to Mr Owens for the time being despite it being acknowledged by every judge involved in the case that the marriage had come to an end all but in name.

Resolution, an organisation of specialist family lawyers (of which every solicitor in Slater Heelis’ family team is a member), intervened in the case, seeking an urgent change in the law. Resolution has been campaigning for no fault divorce for many years.

The fault-based divorce system in this country necessitates the citing of either unreasonable behaviour or adultery if a spouse wishes to divorce prior to a period of separation of either two years, (if the other spouse consents), or five years (if they do not consent).  In practice, this creates wholly unnecessary conflict at the outset of the divorce process.

This case now sends a message to all practitioners that until there is a change in the law, an unreasonable behaviour petition which cites anodyne terms may not hold up to scrutiny by the court if challenged by the other spouse.   In Mrs Owen’s case the court held, reluctantly, that she had not met a requisite threshold that her husband had behaved in such a way to entitle her to a divorce.

In many of the divorce cases we deal with at Slater Heelis, the particulars contained within the divorce petition are often agreed between the divorcing couple in order to avoid conflict at the start of the case. However, even with an agreement in place it can still leave a bitter taste for the person whose behaviour is being cited.

We now hope that the recent public attention will provide the platform needed to make the much needed law reform for no fault divorce.

Overtime

Overtime

There have been a raft of cases in recent years regarding holiday pay and specifically whether and to what extent overtime pay should be included in calculating the amount of holiday pay a worker is entitled to for the four weeks of annual leave which are required to be given to UK workers under European Law. Holiday pay should be paid at ‘normal’ remuneration to ensure that workers are not discouraged or penalised for taking annual leave.

The recent EAT case of Flowers v East of England Ambulance Trust considered again whether voluntary overtime should be included in the calculation of holiday pay.

This particular case concerned members of the ambulance crews of East of England Ambulance Trust who had clauses in their employment contracts dealing with ‘non-guaranteed’ overtime (which was compulsory) and ‘voluntary’ overtime (which was entirely voluntary).  The employees worked both types of overtime but on an irregular basis.

In their claim to the Employment Tribunal, the ambulance crews argued that their voluntary overtime should count towards their ‘normal’ remuneration. On appeal to the EAT, the case of Dudley Metropolitan Borough Council v Willetts was followed and it was held that voluntary overtime was part of normal remuneration if it was paid over a “sufficient period of time“. What amounts to a sufficient period of time will be a matter of fact for the Employment Tribunal to consider on a case by case basis.

ACAS has released some guidance on the issue of overtime and set out that there are three different types of overtime; –

  • Voluntary overtime – where the employer has no obligation to offer overtime and the worker has no obligation to work such overtime if it is offered.
  • Guaranteed overtime – where the employer is contractually obliged to offer overtime and the worker is obliged to perform it.
  • Non-guaranteed overtime – where the employer is not obliged to offer overtime but when it is offered, the worker must accept and work it.

It is recommended that an employer wishing to rely on guaranteed or non-guaranteed overtime should clearly set out in the terms and conditions of employment that acceptance of such overtime is compulsory.

There is no automatic right to receive extra remuneration for overtime, as long as the worker does not receive less than the National Minimum Wage for hours actually worked; for example, an employer may decide to offer time off in lieu as an alternative to extra pay.  Again, the terms and conditions should be clear about what, if anything, the worker will receive for working overtime.

The guidance concludes that, in general, all overtime pay received should be included in calculating a worker’s ‘normal’ remuneration for the purposes of holiday pay unless that overtime is worked on a genuinely occasional and infrequent basis.

Latest Tribunal Decision in the “gig economy”

Latest Tribunal Decision in the “gig economy”

In the latest Tribunal case dealing with the long-running saga concerning employment status in the “gig economy”, the Leeds Employment Tribunal has ruled that a group of Hermes couriers are workers, rather than independent contractors.

The case was brought by a group of 65 couriers, assisted by the GMB union. However, it has been reported that the ruling is likely to affect 14,500 Hermes couriers who are all engaged on the same contract. The judgment follows similar high-profile cases against Uber, Addison Lee and others, where judges have also ruled that individuals engaged on similar contracts are “workers”, rather than self-employed consultants, thereby benefitting from basic employment rights such as holiday pay and national minimum wage.