New court ruling on age discrimination law

Between news of a double dip recession, BSkyB and Jeremy Hunt, Chelsea beating Barcelona, an MI6 spy murder and Madeleine McCann, a few papers managed to spare a few lines today to tell us about an important Supreme Court ruling regarding mandatory retirement and age discrimination: Seldon  v Clarkson Wright and Jakes.

It’s common knowledge that a) the default retirement age of 65 has been abolished and b) age discrimination is unlawful at work. It’s perhaps less well known that (as with most other discrimination law) age discrimination can be justified if it is a “proportionate means of achieving a legitimate aim”. Until Seldon no one had any real idea what this “justification” defence meant in practice when it came to compulsory retirement.

Seldon involved a claim of direct age discrimination by Leslie Seldon, a former partner (not an employee) of a law firm who was forced to retire after his 65^th birthday. The Court supported the firm's assertion that it was possible for it to justify the compulsory retirement of Mr Seldon at 65 if it was a proportionate means of achieving a legitimate aim. On the face of it, the decision therefore potentially completely undermines the legislation brought in by the government last October abolishing mandatory retirement at 65.  The key word here is "potentially":-

Whilst the Court gave its opinion today on what constitutes a legitimate public interest aim: “intergenerational fairness” and “dignity” (examples of which included a) promoting access to employment for younger people b) facilitating the participation of older workers in the workforce c) succession planning and d) avoiding disputes about an employee’s fitness for work over a certain age) it ruled that before a partnership or employer could justify a compulsory retirement at a particular age it would first have to ensure that legitimate public interest aims were actually legitimate aims in the particular employment circumstances and then go on to use "appropriate" and "necessary" means to achieve the aim(s). The case was remitted back to the Employment Tribunal for its consideration of these requirements in the context of the particular facts.

In short, whilst the decision has now re-opened the possibility of mandatory retirement barely six months after it was abolished it doesn't give any "one size fits all rule" as to how this can be done. This is fairly unsurprisingly given the current discrimination law framework and the complex nature of the debate around this hugely important topic. We'll update you once the Tribunal's judgment is published.

Dominic Tomkins

Employment Solicitor

10 weeks to go until the stamp duty concession will end for 1st time buyers

There is only a 10 week period remaining for First-time buyers to receive an exemption from stamp duty. Here at Coles Miller we would encourage any potential first time buyers to take advantage of the current window in which to receive a full exemption on payment of stamp duty.

Under current temporary exemptions First-time buyers are free from paying the 1% stamp duty on purchases of homes costing under £250,000.00. The scheme was only ever intended to be a temporary measure to re-invigorate the Housing Market in a tough economic climate.

Documents referred to in the Chancellors Autumn statement reveal the Governments view that the tax relief failed in its desire to assist more people on to the Housing ladder.

As such, the current exemption for First-time buyers will be brought to an end on the 24th March 2012 as originally planned.

The Governments new strategy is to focus on implementing the new mortgage guarantee scheme to encourage lenders to offer 95% mortgages to First -time buyers of new homes.

As the average property transaction can take on average 6-8 weeks to progress, any potential First- time buyers wishing to take advantage of the exemptions will need to move swiftly to secure properties to purchase. The exemption against stamp duty will only be available on property transactions completing before the 23rd March 2012, as the 24th March 2012 is non working day.

If you require any further information in respect of payment of stamp duty or in relation to property transactions in general, please do not hesitate to contact a member of our Conveyancing team.

Managing Asbestos in Commercial Premises

A sentencing hearing last month at Bournemouth County Court resulted in Marks & Spencers (M&S) being fined £1m and ordered to pay £600,000 in costs for putting members of the public, staff and contractors at risk of exposure to asbestos.

The criminal proceedings were initiated by the Health & Safety Executive (HSE) against M&S and their contractors for asbestos related breaches during refurbishment work at shops in Reading, Bournemouth and Plymouth. 

The case serves as a worthy reminder to all owners or occupiers of commercial premises to ensure that any refurbishment programmes involving asbestos containing materials comply with the strict regulations and safety standards imposed by current legislation.  Failure to do so will clearly result in rigorous enforcement action by HSE.

Tamsin Ledger, Commercial Property Solicitor at Coles Miller Solicitors LLP, says “the legislation imposes a significant obligation on “duty holders” to manage asbestos risk in non-domestic premises.  It is now illegal to use any form of asbestos in the construction or refurbishment of any buildings but asbestos was widely used in the past and remains present in many existing commercial premises constituting a significant health risk to anyone involved in building, renovation or maintenance works of those premises.”

There are significant numbers of people in Great Britain dying each year from asbestos related illnesses as a result of past exposure to asbestos and the figures stress the importance of the legislation which has been developed to regulate the use, removal and management of asbestos.

Tamsin says; “the Control of Asbestos Regulations 2006 (CAR 2006) places an obligation on “duty holders” to determine whether asbestos is present in a building or is likely to be present and to then manage any asbestos that is or is likely to be present.   Where asbestos is found to be present, the duty holder must assess the risk putting together an action plan and systems in place to manage that risk. “Duty holders” is widely defined so that a range of people will be liable including freehold owners, landlords and tenants, licensees and in certain circumstances managing agents.”  

“Failure to comply with the requirements of CAR 2006 constitutes a criminal offence under the Health & Safety at Work Act 1974.   The person convicted of an offence under that act can be fined and/or imprisoned and the Crown Court have scope to impose a penalty of imprisonment up to two years and/or an unlimited fine. Repeated offences can result in cumulative fines as the HSE stringently enforce the regulations.”

Purchasers and proposed tenants of commercial property are advised to ensure that an asbestos survey is carried out before they become liable under the legislation. Tamsin says; “It is imperative as part of the property investigation that they identify the risks and financial implications caused by the presence of asbestos and understand their duties under CAR 2006.   If a purchaser or proposed tenant intends to carry out alterations immediately following completion then they must carry out an assessment of the asbestos present in the premises in advance of those works ensuring they have properly planned and resourced those works and without putting staff, contractors or employees at risk from exposure to asbestos.  The results of any assessment should be recorded as proof of compliance.   The M&S case also emphasises the importance of passing appropriate information on to people liable to disturb asbestos e.g. the contractors carrying out the refurbishment works.” 

In the M&S case, judge Christopher Harvey Clark QC indicated that the company had more interest in its profits than proper planning of asbestos removal. During tough economic times, the cost of compliance may be significant and impact on business profitability making it even more important to identify the risks and costs of compliance at the outset of property transactions. There is an approved code of practice called “The Management of Asbestos in Non-domestic Premises” which has been prepared by HSE and available on their website.

Tasmin Ledger

Family Legal Aid Cuts

A recent report by the Justice Committee has looked at the impact that legal aid cuts will have on family cases. 

Changes to legal aid, due to come into place in October, will mean that there are fewer circumstances where legal aid is available. Many people who would have previously qualified for funding will no longer be able to afford representation. The Committee has said that it is ‘inevitable’ that more people will have no choice other than to represent themselves at court, rather than using a lawyer.

One option, which can prove to be very cost-effective, is to act in person and seek advice from a family lawyer when you need it, from time to time. This gives you a much better chance of reaching a suitable outcome, whilst also keeping your costs down. The Family law team at Coles Miller are experienced at providing advice in this way, and are happy to answer any queries you have. 

We also offer a fixed price ‘DIY Divorce Package’. We can give you expert support and assistance in completing all of the necessary court forms, allowing you to deal with your divorce yourself and stay in control of the cost. 

If you would like any more information about our Family law services, please contact Emma Hamilton Cole on 01202 694891, Colin Mitchell on 01202 673011 or Lindsay Halliwell on 01202 293226. 

Debt recovery – the problem of enforcement where the debtor co-owns a property

by Kate Jack

Where a creditor (who is owed money) has a county court judgment (CCJ) against a debtor (who owes money), obtaining a charge (like a mortgage) against the debtor’s property is often an attractive method of enforcement. Once the creditor has a charge over the debtor’s property, the creditor can force the sale of that property and recover their debts from the proceeds of the sale (assuming there is sufficient equity in the property). 

Where the debtor co-owns a property with others (who do not owe the creditor money), the situation is not so straightforward. Although it is possible to obtain a charging order (once the creditor has a CCJ against the debtor), it is not possible to register it as a charge with the land registry. This means the property can be sold without the creditor having to be repaid. A creditor with a CCJ can still apply to a court for an “order for sale” of the debtor’s property. However, it is likely that the court will be less inclined to grant it where the debt is only owed by one of the co-owners. 

It is also not possible to enter a formal “notice” against the title of such a co-owned property so the best that can be hoped for is a “restriction” registered against the title  which requires a purchaser to give notice of the sale to the creditor. Unfortunately this will still not mean that the creditor is automatically repaid. 

Given these problems, it may be worthwhile considering other methods of enforcement where the debtor is not the sole owner of their property.

For assistance with debt recovery and enforcement matters please contact Eric Holt on 01202 673011.

Poole-based fancy dress business wins Dragons Den investment

On another Dragon’s Den story, congratulations to Peter and Michelle Hart of Fun Fancy Dress Limited, a Poole-based fancy dress business, who last night on the program persuaded Duncan Bannatyne to invest £100,000 in exchange for 50% of the shares in their company, as reported by the Bournemouth Echo today: 

http://mobile.bournemouthecho.co.uk/news/9195817._I_won_a_Dragon_s_backing_for_my_fancy_dress_business_/

If you require help on any business matter, please contact Mark Howell of our company commercial department on 01202 338 896 or 01202 673011.

Ex Dragon James Caan Defends Contestant Libel Claim

Former Dragons’ Den star James Caan has successfully defended an action for libel and malicious falsehood following a claim made by one of the shows former contestants. Sharon Wright, who appeared in the Den in 2009, attempted to sue the Dragon following comments made in an article published by the Mail on Sunday in August 2010.

Ms Wright, who invented a device for running cables safely through walls, was offered an £80,000 joint investment from Caan and fellow Dragon Duncan Bannatyne after an impressive pitch on the BBC show. Following a due diligence exercise by the Dragon’s team, which revealed certain issues with the business, a deal was agreed which centred on a loan of £80,000 and the transfer of 22.5% equity for a nominal sum. Although initially agreeing to the terms, Ms Wright subsequently walked away from the deal claiming that the investment was not in line with what she had expected.

In response to an interview given by Ms Wright in which she expressed disappointment on the collapse of the deal, Caan told the Mail on Sunday “occasionally the investment opportunity isn’t as it appears on the show”. Ms Wright argued that the comment implied that she had misled the Dragons as to the investment opportunity her business represented. However, the court determined that the comment meant only that the picture was more complicated than it had appeared in the course of the pitch on the programme.

Several other claims made by Ms Wright against Caan were also found to be without substance and were rejected by the court.  

Whilst the case was about defamation, the background facts highlights the importance of due diligence in all commercial deals, from small scale investments to the sale of a large company. Whether you are looking to sell your business or whether you are looking to buy or invest in a business, taking good legal advice should ensure that your interests are protected and that the transactions you are involved in proceed as smoothly and as quickly as possible.   

If you require help on any business matter, please contact Mark Howell in our company commercial department on 01202 338 896 or 01202 673011.

Office of the Public Guardian considering non-lawyer "deputies"

On 4^th August 2011, the Office of the Public Guardian issued a ‘call for evidence’ to charities and non-profit organisations with a view to potentially using non-lawyers to act as deputies to some of the most vulnerable people in society.

A deputy is someone appointed by the Court to make important financial or welfare decisions on behalf of someone who is unable to make decisions on their own, such as someone with a mental illness or who has suffered a serious brain injury.

Currently, almost all deputies are lawyers. They are able to provide professional help in what can be a difficult situation, but their involvement can increase costs. The OPG acknowledges that there are situations where clients will benefit from the use of a legally qualified deputy - for example, a dispute over the use of the client’s assets may involve litigation proceedings, or complex financial matters may require ongoing management. But it may also be the case that a client’s needs are not so complex and therefore the involvement of a solicitor in a deputyship role may not be necessary.

The call for evidence is the OPG’s way of finding out the feasibility of using non-lawyer deputies, who would be provided by charities and non-profit organisations. This would be a more cost effective solution for clients whose affairs do not require the ongoing expertise of a solicitor. Of course, this would only be a satisfactory outcome if the deputies are able to provide the proper level of service expected of someone in such an important role. The call for evidence ends on 27^th October 2011.

The public guardian Martin John said: 'Deputies play a very important role in supporting some of the most vulnerable people in our society. Quite often it may be appropriate for a legally qualified deputy to be appointed. But charities and other third sector organisations potentially have a huge amount to offer in this area. They bring with them a unique perspective based on many years working closely with users and a deep understanding of the issues that they face’

An alternative to having a Court appointed deputy would be to make a Lasting Power of Attorney, which allows you to appoint whoever you want to make decisions on your behalf should you lose your mental capacity in the future. 

For more advice on Court appointed deputies or Lasting Powers of Attorney please contact a member of our private client team on 01202 673011.

 

NEW Agency Worker Regulations

On 1 October 2011 the Agency Worker Regulations will come into force establishing new rights for temporary agency workers. These new rules will fundamentally affect the way that organisations use agency workers.

On 9 September 2011 we are teaming up with Jobshop UK and holding a free breakfast workshop at the Lifeboat College on West Quay Road, Poole, to explain the new framework.

There'll be a legal brief followed by a group discussion around different real life scenarios that you may face.

To reserve your place or for further details please contact Joanna Mapstone on 01202 338959 or marketing@coles-miller.co.uk. Places are limited so please respond asap and by Friday 2 September at the latest.

A Tribunal won’t always believe every contract it reads

By Simon Arneaud

The Supreme Courts’ recent ruling in the case of Autoclenz Ltd v Belcher [2011] UKSC 41 is a significant case which confirms that employment contracts will be interpreted in conjunction with the reality of a particular arrangement and that the Courts will not blindly accept the terms of an employment contract as evidence of that particular employee’s day-to-day working reality.

The facts of the case were that Autoclenz Ltd was contracted by British Car Auctions Ltd. Twenty of Autoclenz’s car valeters signed contracts describing themselves as self-employed subcontractors in 2007. They paid their own tax and had to purchase their own insurance, uniforms and materials (the latter two of which they could do from Autoclenz). Their contracts stated they were under no obligation to attend work, although the tribunal found that, in practice, they were expected to attend work and provide services personally despite there being a term that a valeter could provide a suitably qualified substitute.

Despite what these contracts purported, the real situation trumped what was written in these contracts and the Supreme Court upheld the original decision of the Tribunal that the valeters were employed under contracts of employment.

The Court held that the circumstances in which contracts relating to work or services are concluded are often very different from those in which commercial contracts. It said that, frequently, organisations which are offering work or requiring services to be provided by individuals are in a position to dictate the written terms which the other party has to accept. Indeed, in Autoclenz, one of the things the Tribunal held as fact was that if the valeters had not signed the revised contracts they would not have been offered further work. This case highlights that this inequality of bargaining power between the respective parties will be considered when interpreting employment contracts.

Sometimes, employers will include terms in their contracts aimed at avoiding a particular statutory result, even where such terms do not reflect the real relationship. The problem for the employer arises where one party to an employment contract seeks to challenge the genuineness of that term. There is no need to show an intention to mislead anyone; it is enough that the written term does not represent the intentions or expectations of the parties. Employers should be aware that - when considering the issue of employment status - a Tribunal will inevitably consider the question “what was the true agreement between the parties?”

If you have any Employment or HR matters please contact Dominic Tomkins on 01202 338822 or Matt Smith on 01202 204617.

‘Marketing Coup for Coles Miller’

‘Coles Miller is top of the solicitor rankings on Google. During a presentation at the recent Law Society AGM in Bournemouth, local advertising agency Aylesworth Fleming revealed that our site ranked number one with Google. We have been working closely with our web providers, Adido, to achieve this aim

Stamp Duty Changes

Clients are reminded that from the 6th April 2011, the new top rate of stamp duty on acquistions of land that consist entirely of residential property, will raise to 5%. This new rate will apply where the chargable consideration exceeds £1,000,000.

If you wish to discuss any issues stemming from this change in stamp duty, please do not hesitate to contact any member of our Conveyancing Team.

NHS still missing safety alerts

A report from the BBC today raises concerns over patient treatment by the NHS, outlining the following:

"Too many trusts are still not responding to patient safety alerts in England, campaigners say.

Alerts are issued when potentially harmful situations are identified in health settings, such as the risk of overdoses or using medical equipment.

Department of Health data showed there were over 650 cases of NHS trusts not complying with alerts within deadline.

This is a 50% fall from last year, but Action against Medical Accidents said there was no excuse for non-compliance.

The charity first highlighted the issue last year when it obtained the figures under a freedom of information request.

But now the government has started publishing the figures itself.

Warnings

The latest data, from January, showed that there were 654 instances of patient safety alerts not having been complied with - half the figure from August.

In total there were 203 trusts which had failed to comply with at least one alert, while five trusts had not complied with 10 or more alerts.

Peter Walsh, chief executive of Action against Medical Accidents, said: "There can be no excuse for not implementing these alerts. Each alert not complied with means patients are being put at unnecessary risk. Lives are being lost as a result."

But he added: "We welcome the fact that as a result of the pressure we have brought to bear, there has been a significant improvement in compliance."

A Department of Health spokesman said: "Although progress has been made, much more needs to be done across the system. We expect trusts to comply with safety alerts."

If you feel that you may have suffered an injury due to Clinical Negligence, please contact one of our specialist Clinical Negligence layers who will be pleased to discuss your grievance with you.

An ease in mortgage lenders restrictions?

Figures released this week suggest that the proportion of mortgage deals requiring a deposit in excess of 25% of the purchase price has fallen to a two year low.

Moneyfacts (a leading brokerage) says that 46% of mortgage products currently on offer within the market place now ask for a deposit of that size. This is the first time in over 2 years that the number of new mortgage deals available within the market place requiring a 25% deposit has dipped below 50% of the total.

The figures do seem to suggest that some lenders may be starting to relax their strict mortgage lending criteria seen in the past two years, and maybe of some comfort to first time buyers struggling to raise the funds required to finance a deposit to purchase a new home.

If you wish to discuss any aspect of purchasing a new property please do not hesitate to contact a member of our Conveyancing Department.

Women win £200,000 payout over pill implant pregnancies

Nearly £200,000 in compensation has been paid to women who have become pregnant or been hurt after they were fitted with a popular contraceptive implant.

The NHS has received more than 1,000 complaints about Implanon, a device that had been hailed as the future of family planning.

The procedure involves injecting a plastic implant under a woman's skin, which releases the "pill" hormone progesterone, guarding against pregnancy for up to three years.  The procedure is regularly given to under-16s who are not deemed responsible enough to remember to take oral contraceptives on a daily basis.

Figures obtained by Channel 4 News show that 584 women who had the hormone-filled tube inserted into their arms have reported unwanted pregnancies to the Medicines and Healthcare Regulatory Agency.  There have been a total of 1,607 complaints about scarring and other problems associated with the device, the majority made by doctors and nurses who claimed it was difficult to insert properly and could not be checked afterwards. In the most serious cases, NHS Trusts have offered settlements to seven women totalling nearly £200,000.

Some women who took Implanon terminated pregnancies and suffered the breakdown of relationships.
One woman, named as Lara, said her marriage collapsed due to the stress. "I don't want kids at this time. It really disturbed me," she said.

MSD, which manufactured the implant, said it was replacing Implanon with a new contractive implant named Nexplanon.

In a statement, it added that the active ingredient would remain the same but, unlike Implanon, the new implant would show up on X-rays and CAT scans. The applicator has been modified, the company said.
It added that a training programme was available for health professionals involved in fitting the devices.
Family planning clinics in England have reported rapidly increased use of contraceptive implants, from 16,000 women in 2005 to nearly 82,000 in 2010. Implanon, which cost £90 per treatment, was more than 99 per cent effective.

A spokesman for the MHRA said: "The reports we received from health care professionals and consumers played a strong role in the update of the device."

If you have become pregnant or suffered an injury after being fitted with a contraceptive implant, please contact one of out specialist Clinical Negligence team members who will be happy to discuss your grievance with you.