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Time-barred discrimination claim revived following Supreme Court ruling on unlawful fees

Time-barred discrimination claim revived following Supreme Court ruling on unlawful fees

On 26 July 2017, the Supreme Court unanimously ruled that employment tribunal fees are unlawful. Everyone has the right of access to justice but the tribunal fees have adversely affected that right. 

In Dhami v Tesco Stores Ltd, thought to be the first employment tribunal case to be heard following the Supreme Court’s landmark ruling, the claimant successfully argued that time should be extended because she had to pay the fees. 

Ms Dhami, an employee at Tesco, had brought claims for disability and age discrimination. Her application for help with fees was unsuccessful and she was required to pay an issue fee. When she failed to do so her claim was rejected. By the time she became aware of this, she was potentially out of time to lodge a fresh claim. Upon the claimant issuing a second claim, Tesco argued that the tribunal should decline jurisdiction. 

Ms Dhami sought to have her claim revived before a tribunal in Southampton last Thursday arguing that the rejection of her first claim was unlawful in light of the obligation to pay unlawful fees. Judge Wright agreed and granted a ‘just and equitable’ extension of time as permitted under the Equality Act 2010. 

It is worth noting that this decision comes further to an order made by the president of the Employment Tribunals Brian Doyle last week that all employment claims or applications brought to tribunal which rely on last month’s Supreme Court decision on fees should be stayed (i.e. put on hold). 

It therefore remains to be seen whether Doyle’s order will be observed until further guidance is issued (leaving employers in a position of uncertainty) or whether judges will exercise their discretion to extend the time for an individual to bring a claim before a tribunal.

 

The Scope of Vicarious Liability

The Scope of Vicarious Liability

Barclays Bank plc has been held vicariously liable for sexual assaults committed by a doctor engaged to carry out medical examination for job applicants.

In reaching the decision in various Claimants v Barclays Bank plc, the High Court applied the following two-stage test:

  1. Whether the relationship between Barclays and the doctor was one of employment or ‘akin to employment’; and
  2. Whether there was a sufficiently close connection between the assaults and the relationship between Barclays and the doctor.

Applying the five criteria identified in Cox v Ministry of Justice [2016], the assaults had been committed as a result of activity being undertaken by the doctor on behalf of Barclays, and the doctor was under the control of Barclays as they could direct what he did, even if they didn’t direct him how he should do it.

In respect of the second limb of the test, there was a sufficiently close connection as the assaults were inextricably interwoven with the carrying out of the doctor’s duties.

Finally, it was fair, just and reasonable to impose vicarious liability as this was now the Claimants’ sole legal recourse, even though this was due to the claim being brought many years after the alleged assaults.

The Battle of the Worker Status Continues

The Battle of the Worker Status Continues

Worker status has yet again been established in the so-called ‘gig’ economy, this time a successful action was brought against Addison Lee (a minicab firm).

The central London employment tribunal found that the company had treated its workers as ‘independent contractors’ without rights to holiday pay or the national minimum wage. Its ruling that cycle courier Chris Gascoigne, 48, should be classed as a ‘worker’ follows similar verdicts in cases brought against Uber and Deliveroo. The court also showed concern that the company attempted to ‘frighten off’ Gascoigne from challenging his employment status as a clause in his contract stated he should “indemnify Addison Lee against any liability for any employment-related claim or any claim based on worker status brought by you”.

The decision comes at a time when the government is considering recommendations to implement laws that any self-employed worker under “control” or “supervision” from their contracting company should be considered a “dependent contractor” and benefit from holiday pay, sick pay and the minimum wage.

Baroness Hale appointed as UK Supreme Court’s first female president

Baroness Hale appointed as UK Supreme Court’s first female president

Baroness Hale will become the first female president of the UK Supreme Court. On 2 October, the 72 year old will take over from Lord Neuberger, who is retiring in September, having been his deputy since June 2013.

Hale has encouraged diversity in the judiciary for a number of years and has previously commented that it is ‘not only mainly male, overwhelmingly white, but also largely the product of a limited range of educational institutions and social backgrounds’.

Speaking about her appointment, she said: “It is a great honour and a challenge to be appointed to succeed Lord Neuberger. I look forward to building upon his pioneering achievements, including developing closer links with each part of the United Kingdom, for example by sitting outside London, and improving the ways in which we communicate our work to the public … Recent high-profile cases mean that more people than ever before have heard of the supreme court, and we hope that this will help to create a broader understanding of how the judiciary serves society.”

The Supreme Court is the final court of appeal for civil cases in the UK, and criminal cases from England, Northern Ireland and Wales. It considers cases where an order has already been made in a lower court and is being challenged. For Baroness Hale such cases include the government’s Brexit appeal and the appeal from the parents of Charlie Gard.

BBC Salaries Scandal

BBC Salaries Scandal

The Government has demanded that the BBC disclose the names and salaries of everyone earning more than £150,000 as part of its new royal charter.

The findings have resulted in concerns over the gender pay gap and a lack of diversity amongst the channel’s highest earners; the seven presenters earning over £500,000 a year are all men and there are only ten people of colour on the overall list of 96.

BBC Director General Tony Hall recognises the discrepancy but has pledged to make improvements. He said: ‘At the moment, of the talent earning over £150,000, two-thirds are men and one-third are women. We’ve set a clear target for 2020: we want all our lead and presenting roles to be equally divided between men and women. And it’s already having a huge impact. If you look at those on the list who we have hired or promoted in the last three years, 60% are women and nearly a fifth come from a BAME background.’

It is worth noting however that the list itself is not comprehensive, it only includes the salaries directly paid from the licence fee.  This means the disclosure does not include payments to staff from independent production companies and BBC worldwide. It means that some high-profile stars have not been included on the list and that some payments are not recorded. To put this into context, despite topping the list, Chris Evans’ reported salary may be higher as Top Gear is part-funded by BBC worldwide and there is no mention of stars such as Sir David Attenborough and Matt LeBlanc.

The complete guide to contesting a will

The complete guide to contesting a will

When a member of your family, close friend or loved one passes away and you believe there is a discernible error within the last will and testament they have left behind, or that it has not been correctly implemented in some way, then you may have valid cause to legally contest the contents of their will in court.

The process of contesting a will is often complex, which makes expert legal advice essential to validate your situation before committing to formal legal proceedings. This comprehensive guide covers all aspects involved with contesting a will, and outlines the necessary steps that need to be taken to submit a successful claim.

What is a last will and testament?

A last will and testament allows a person to decide exactly what will happen to their money, property and possessions in the event of their death. It may also include care instructions for any children aged under 18. As a formal legal document, it must be witnessed and signed for it to be considered legally valid. The process of confirming the validity of a will is known as probate.

People can write their own will by themselves, though if it involves complex terms then it is always best to seek the advice of an experienced legal professional. A will must also be stored safely, whether at home, with a solicitor or a third-party company that offers storage of wills as part of their service.

In the event that a person does not submit a formal will to a solicitor then the law will then make an informed judgment on the administration of their estate, and decide which people or parties are due to inherit their money and assets. This legal term for this process is intestacy.

Can a will be contested?

Yes, although the person contesting the will must be a spouse, child, cohabitee or a person who is expressly mentioned in the will, or a previous will. The person must also ensure they have valid legal grounds to contest a last will and testament successfully.

Grounds for appeal include the following:

  • Lack of testamentary capacity – The person creating the terms of the will, known as the testator, must be of sound mind when they create and sign the document. They must understand the full extent of their estate and possessions and understand who they are choosing to include and exclude.
  • Lack of due execution – The testator must sign their will in the presence of at least two formal witnesses who are present at the time of signing. Each witness must then also give signed receipt that they have witnessed the signing of the will by the testator. If there is any evidence to suggest otherwise then a claim of lack of due execution may then be raised.
  • Undue coercion – A claim may be raised if there is significant evidence to suggest that the testator has been manipulated into submitting unfair or invalid terms within their will. Due to the nature of this claim, the supporting evidence must be of a high standard in order to stand any chance of it being successful.
  • Fraud – It possible to contest a will if the claimant has valid grounds to suggest that the will has been forged in any way. For instance, if a testator instructs another person to formalise the terms of their will, and then that person submits false terms to benefit themselves and forges the signature of the testator, then the will may be overturned and declared fraudulent.

How long do I have to contest a will?

It is essential to act as swiftly as possible when contesting a will as there may be a stringent time period in which a will is liable to be contested from the date of death, the grant of probate or from the issue of letters of administration.

This time period depends on the nature of the claim. For instance, if a claim is made in lieu of the Inheritance Act then a person must submit their claim within six months of the date of probate. The information below details the most common types of claims and the allotted time period in which they must be made:

  • Inheritance act – Six months from the issue of the grant of probate
  • Claim for maintenance – Six months from the issue of the grant of probate
  • Beneficiary making claim against the will – 12 years from date of death
  • Fraud – No time limit

How to contest a will – a step-by-step guide

We’ll go into more detail below, but in summary here’s how to contest a will:

  1. Act quickly
  2. Lodge a caveat
  3. Pursue court action

Act quickly – If you are considering the option of contesting a will for whatever reason then you should seek legal advice as a matter of urgency to confirm whether you are able to submit a claim within the above time constraints. Contesting a will after probate has been granted is possible, though it is always preferable to raise a claim beforehand.

Lodge a caveat – Once a solicitor has validated your claim, you are then in a position to submit a formal claim, known as a ‘caveat’, to the Probate Registry office. This means that an official probate cannot be completed and issued – and therefore the deceased’s money and estate cannot be distributed – without first notifying the claimant and resolving the dispute. The caveat lasts for six months, though it can be renewed where applicable.

Pursue court action – Often, a dispute may be resolved outside of court through mediation or another alternative form of dispute resolution; however, in the event that an agreement cannot be reached during the caveat stage then a formal court claim may be then submitted. These claims tend to be categorised in one of two ways: a claim against the validity of the will, or a claim that the will does not make sufficient provision for the claimant. It should also be considered by all parties involved that court costs can soon mount up in the event of a prolonged dispute, which is why it is always preferable to reach a mutual agreement outside of court wherever possible.

What to do if a will is contested against

If you are a family relation or friend to the deceased, or a direct beneficiary from their will, and are therefore due to deal with a formal claim made by a claimant that the will is invalid then it is equally important to have an in-depth understanding of the above information and seek legal counsel as soon as possible.

As before, it is always preferable to reach an amicable agreement outside of court to avoid the potentially high cost of court fees. In the event that the case is taken to court and the will is declared invalid for whatever reason then the court may rule to discredit part of the will, or the entire will outright. They may then refer to an earlier, validated will if one exists. If there is no earlier will to refer to then the money, property and possessions of the deceased may be distributed under intestacy law.

Regardless of your situation, if you’re looking to contest a will or are dealing with a contested will, then we are here to help with friendly, expert legal support and advice. Please contact our team of contentious probate solicitors for further information.

Getting the Employer’s name right when pursuing an employment tribunal claim

Getting the Employer’s name right when pursuing an employment tribunal claim

A claim will be rejected by an employment tribunal if the name of the prospective respondent on the early conciliation (EC) certificate to which the EC number relates differs to the name of the respondent on the claim form, “unless the judge considers that the claimant made a minor error in relation to a name or address and it would not be in the interests of justice to reject the claim” (Rule 12(2A), ET Rules).

In the recent case of Giny v SNA Transport Ltd, the Claimant Mr Giny brought several claims, including constructive dismissal, against his former employer. Before issuing his Claim Form (when he was not represented), Mr Giny provided ACAS with the information required for early conciliation and named the director Shakoor Nadeem Ahmed as the prospective Respondent. He then instructed solicitors to prepare his Claim Form which correctly named the Respondent as ‘SNA Transport Limited’.

The employment tribunal rejected the claim as it had no jurisdiction since the prospective Respondent’s name in the EC certificate was not the same as the name in the Claim Form. Mr Giny asked for this decision to be reconsidered on the basis that it was not in the interests of justice to reject the claim and under Rule 12(2A) of the ET Rules the tribunal was allowed to accept claims where the difference was a minor error.

The employment tribunal dismissed the application for a reconsideration and stated that the ET rules were clear on the need for the name of the prospective respondent to appear on an EC certificate and this had not occurred in this case. Confusing the director with the company was not a minor error.

Mr Giny appealed to the Employment Appeal Tribunal. The EAT rejected the Claimant’s application on the basis of a two-stage test:

  1. Was it a minor error? If not, the claim would be rejected.
  2. If it was, the tribunal should consider whether or not it was in the interests of justice to allow the claim to proceed.

Although in principle the distinction between a natural and a legal person could amount to a minor error, in this case it did not. It is important to note that each case should be considered on its facts; here, as there was no error in the tribunal’s Judgment the Claimant’s appeal was dismissed.

 

One in four new dads are missing out on paternity leave and pay

One in four new dads are missing out on paternity leave and pay

The Trades Union Congress has reported that one in four men who became fathers in 2016 did not quality for paternity leave or pay. Out of 624,398 working fathers around the UK with a child under one, 157,551 new fathers did not qualify for the (up to) two weeks’ statutory paternity leave and pay either because they were self-employed (112,819) or had less than the required minimum service (6 months’ with their current employer by the 15th week before the baby is due) to qualify (44,732).

There is a growing concern that as a result many fathers are missing out on spending time with their families at a very crucial time.

The TUC is calling for better paternity pay and leave for fathers and partners.

Their proposals include:

  1. A right to statutory paternity leave for all workers from day one in the job. This would abolish the 6 month qualifying period and would bring the right to paternity leave in line with maternity leave as a day one right.
  2. Increased paternity pay to at least minimum wage levels.
  3. A paternity allowance for dads who are not eligible for statutory paternity pay. This would be similar to the maternity allowance which self-employed mothers and mothers who haven’t been with their employers long enough can claim.
  4. Dedicated leave for dads which would provide an additional month of well-paid parental leave reserved for fathers only.

Slater Heelis Legal Clinic – Road Cycling Accidents

Slater Heelis Legal Clinic – Road Cycling Accidents

Most cyclists will know the challenges of cycling on Britain’s roads, among them the condition of many routes. David Rowlands explains what you should do if you have an accident because of disrepair on the roads.  

Q.) As a cyclist, if I’m involved in a road accident as a result of the road condition, what legal rights do I have and what should I do?

Nearly 100 cyclists have been killed or seriously injured on Britain’s roads in the last two years due to potholes and other defective surfaces.

In 2015, the latest year for which figures are available, 46 people were knocked off their bikes because of unsafe road surfaces. A year earlier, 53 cyclists were killed or seriously hurt.

Under section 41 of the Highways Act 1980, local councils have an obligation to maintain public roads to a ridable condition.

If you suffer damage to property, loss or injury due to a defect in the highway you may be able to claim from the relevant highway authority, usually the local council.

In the first instance, you should take photographs of the road condition and get a quote for any damage to your bike or other property.

You should then report the defect the highway authority responsible for maintaining the road.

It is also advisable to look on www.potholes.co.uk and see if the highway has already been reported. If it has, be sure to make a note of this.

A personal injury solicitor will then be able to give you some advice on making a claim.

In the unfortunate event you sustained an injury, the claims process is quite complicated and lengthy, so you would be well advised to appoint a lawyer who is highly experienced in cycling accident claims.

If there is injury involved and/or the claim is worth a substantial sum, a lawyer may be able to accept the claim on a No Win No Fee basis. However, if it is a relatively minor claim (worth less than £10,000) and no injury has occurred you won’t be able to claim your legal costs back. In this case, you will either have to pay your legal fees yourself, or make a direct claim to the council.

If you do decide to take up matters with the council yourself, without legal advice or support, the council may well argue that they have a proper maintenance procedure in place which can be a valid defence to your claim under section 58 of the Highways Act.

Going alone in this case can be a lengthy process. You will need to submit a Freedom of Information request in order to obtain a copy of the procedure and details of when the site of the accident was last inspected and/or repaired. If the inspection and repair records show that the maintenance procedure was not followed then your claim should succeed.

Having an experienced personal injury solicitor in your corner will help you to get back on your feet, and, more importantly, back on your bike.

It is worth noting that any claims for personal injury must be brought within three years of the accident, and all other claims within six years of the accident.

Worker Status granted to couriers working for The Doctors Laboratory

Worker Status granted to couriers working for The Doctors Laboratory

The Doctors Laboratory (TDL), a company providing pathology services to the NHS, has admitted in legal action that couriers carrying emergency blood supplies to hospitals and samples to laboratories are not self-employed. The couriers, including cyclists, motorcyclists and van drivers are now regarded as ‘workers’ and this entitles them to enhanced employment rights including holiday pay and a minimum wage. Although a welcome decision for worker status, the case will continue to be pursued against TDL, with the couriers arguing that they are employees.

The news comes during a time of uncertainty in the so-called “gig” economy, with similar claims being brought against Uber and Deliveroo.