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<copyright>Copyright &#169; 2012 Lanyon Bowdler Solicitors</copyright>
<pubDate>Sun, 05 Feb 2012 08:45:46 +0000</pubDate>
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<description>Lanyon Bowlder Solicitors blog.</description>
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<description>Lanyon Bowlder Solicitors blog.</description>
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<title><![CDATA[Increase to Unfair Dismissal Qualifying Period]]></title>
<link>http://blog.lblaw.co.uk/increase-to-unfair-dismissal-qualifying-period-336/</link>
<description><![CDATA[
The Chancellor of the Exchequer, George Osborne, announced at the Conservative Party conference that the unfair dismissal qualifying period will rise from one year to two years, with effect from 6 April 2012. This announcement will be a welcome one for employers. The Department for Business, Innovation and Skills (BIS) issued a press release the same day setting out the governments estimates that the proposed changes will save businesses 6 million per year and also result in the number of unfair dismissal claims dropping by 2,000 per year. However, employers should not presume they are completely safe from potential claims in the first year or, from 6 April 2012, the second year, of an employees employment. Claims for discrimination, for example, do not require a minimum qualifying period and so, whilst the number of unfair dismissal claims should reduce, this may result in an increase in the number of discrimination claims, with employees trying to rely on discrimination arguments in the absence of a possible remedy for unfair dismissal. There are also circumstances where a dismissal is automatically unfair even where an employee has not completed a minimum period of service (e.g. where dismissal is because the employee is pregnant). Employers should also ensure that their disciplinary procedures are expressed to be non-contractual (save for provisions relating to the implementation of penalties short of dismissal, other than warnings, such as suspension, demotion, transfer of duties or loss of pay), or otherwise correctly apply any such procedures even when dismissing an employee who does not have unfair dismissal protection, as a failure to follow such procedures may give rise to a claim by the dismissed employee for breach of contract.Finally, employers should be wary of dismissing an employee, without notice or on less than the statutory minimum one weeks notice where that employee is in the 51st, or, after 6 April 2012, the 103rd, week of their employment, as, in the absence of gross misconduct or some other fundamental breach of contract, the effective date of termination will then be extended to the date that the employee's statutory minimum notice would have expired, meaning that the employee will qualify for unfair dismissal protection. However, this principle does not apply in respect of contractual notice periods which are longer than the statutory minimum, e.g. an employee who has been employed for 49 weeks and is contractually entitled to a months notice, but is dismissed without notice, will not qualify for unfair dismissal protection, despite the fact that had he been given proper notice he would have been employed for over a year. He would, however, be entitled to a payment in respect of notice  which could be tax-free, depending on the circumstances. Also, in such circumstances the employer might invalidate post-termination restrictions in the contract of employment.  Whilst the decision to extend the qualifying period is a welcome one for employers, advice should still be sought before dismissing an employee with less than the qualifying period of service to ensure there are no other issues which could give rise to a potential claim and that the employees notice entitlement is dealt with in the way which best suits the employer.If you would like any advice relating to this topic, contact me on 01952 291222 or email bethan.jones@lblaw.co.uk.  
]]></description>
<category><![CDATA[Employment Law]]></category>
<pubDate>Fri, 28 Oct 2011 16:06:51 +0000</pubDate>
<guid>http://blog.lblaw.co.uk/increase-to-unfair-dismissal-qualifying-period-336/</guid>
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<item>
<title><![CDATA[Introduction of New Offence - Causing Serious Injury by Dangerous Driving]]></title>
<link>http://blog.lblaw.co.uk/introduction-of-new-offence-causing-serious-injury-by-dangerous-driving-329/</link>
<description><![CDATA[
Reports in the press today suggest the government is planning to introduce a new criminal offence of Causing Serious Injury by Dangerous Driving.  The new offence will carry a maximum sentence of five years imprisonment. The current maximum penalty for Dangerous Driving is two years imprisonment.The new offence is being considered to fill the gap in sentences available to a court.  Currently someone convicted of Death by Dangerous Driving could face a maximum 14 year prison sentence whereas Dangerous Driving carries a 2 year maximum.The new offence of Causing Serious Injury by Dangerous Driving is set to be introduced in the Legal Aid Sentencing and Punishment of Offenders Bill. I specialise in motoring law offences - find out more here. If you have any queries about this or any other aspect of motoring law contact me on 01952 291222 or you can send an email to stephen.scully@lblaw.co.uk.  
]]></description>
<category><![CDATA[Criminal Law]]></category>
<pubDate>Fri, 07 Oct 2011 10:00:30 +0000</pubDate>
<guid>http://blog.lblaw.co.uk/introduction-of-new-offence-causing-serious-injury-by-dangerous-driving-329/</guid>
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<item>
<title><![CDATA[Bribery Act 2010 - Employers Need to Take Action]]></title>
<link>http://blog.lblaw.co.uk/bribery-act-2010-employers-need-to-take-action-327/</link>
<description><![CDATA[
On 1 July 2011 the Bribery Act 2010 came into force. The Act extends the crime of bribery to cover all private sector transactions, as previously only bribery involving public officials and agents were offences, the Act has created a new strict liability offence where commercial organisations have failed to prevent bribery where a bribe has been paid, or received, by an employee, agent and/or other persons connected with an organisation.The potential consequences for failing to comply with the Act include unlimited fines for companies and individuals, as well as prison sentences of up to 10 years for the latter. However, provided a commercial organisation can show that adequate procedures have been put in place to prevent bribery, this will provide a defence where an employee, agent or other person connected with an organisation has committed an offence under the Act. Therefore, businesses would be well advised to ensure such adequate procedures are in place.The Ministry of Justice has published guidance on what an adequate procedure may involve. Businesses should conduct a risk assessment in order to establish the extent of their exposure to bribery, as the extent of the procedures, that will be considered to be adequate, will depend upon the extent of the exposure. For example, organisations that are involved in dealings with foreign countries, where there are known to be high levels of corruption, will need to ensure they have particularly stringent procedures in place. Transparency International has published an index which details the levels of corruption in each country. Countries scoring the highest include Iraq, Somalia, Sudan and Afghanistan, with Italy and Greece scoring the highest out of the EU countries, although all countries in the world have been noted to have some level of corruption. Similarly, organisations that are involved in complex projects which include a number of different contractors, such as in the construction industry, will need to have detailed anti-bribery procedures. However, organisations that do not fall within the high risk categories should not presume they are not at risk, and therefore no procedures at all are required. We have recently conducted seminars on the Act and an example of bribery that is allegedly not uncommon is for persons in the funeral industry to pay individuals within care homes for information relating to the death of residents within the home, so funeral directors can secure work. Such a practice would be an offence under the Act, and this is a useful example of an industry that, although seemingly low-risk, could still fall foul of the Act.Recommended steps include that businesses shall introduce anti-bribery policies into the workplace, and incorporate anti-bribery provisions into terms of business and any other contracts with third parties. It may be appropriate, when introducing an anti-bribery policy or related terms, and thereafter from time to time, to provide training to staff to ensure they are aware of the provisions of the Act, and the implications of any breach of it. An anti-bribery officer should also be appointed, who should be either someone at board level or a senior employee reporting to the board. Lanyon Bowdler provide advice and assistance with conducting risk assessments and/or formulating and implementing adequate procedures in respect of the Bribery Act. We are able to provide commercial organisations with an anti-bribery policy, together with guidance on the same, for a fixed fee of 100 plus VAT, and half-day training sessions on the Act for employees at a cost of 500 plus VAT. Please contact Bethan Jones on 01952 291222 or email bethan.jones@lblaw.co.uk for more information. 
]]></description>
<category><![CDATA[Employment Law]]></category>
<pubDate>Fri, 30 Sep 2011 11:15:13 +0000</pubDate>
<guid>http://blog.lblaw.co.uk/bribery-act-2010-employers-need-to-take-action-327/</guid>
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<title><![CDATA[Court Employee to be First Prosecuted Under Bribery Act]]></title>
<link>http://blog.lblaw.co.uk/court-employee-to-be-first-prosecuted-under-bribery-act-321/</link>
<description><![CDATA[
A London magistrates court employee has become the first person to be prosecuted under the new Bribery Act.Munir Yakub Patel, a clerk at Redbridge Magistrates Court in Ilford, faces a charge under Section 2 of the 2010 Act for requesting and receiving a bribe intending to improperly perform his functions.It is alleged that Patel promised he could influence the outcome of the criminal proceedings in exchange for 500, on 1 August 2011. 
]]></description>
<category><![CDATA[Criminal Law]]></category>
<pubDate>Mon, 12 Sep 2011 13:01:46 +0000</pubDate>
<guid>http://blog.lblaw.co.uk/court-employee-to-be-first-prosecuted-under-bribery-act-321/</guid>
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<title><![CDATA[Supreme Court Update on Establishing Employment Status]]></title>
<link>http://blog.lblaw.co.uk/supreme-court-update-on-establishing-employment-status-314/</link>
<description><![CDATA[
The Supreme Court has recently given its judgment in a case that provides an important reminder for businesses who contract  or at least purport to contract  with individuals on a self-employed basis, as opposed to on an employed basis.  Although this case involved car valeters, the principles apply to all individuals and sectors. 
      The valeters were engaged under contracts with a company called Autoclenz Limited which referred to them as sub-contractors.  The contracts also stipulated that the valeters could send substitutes to do their work, there was no obligation on the valeters to provide their services, there was no obligation on Autoclenz to provide work and that the valeters confirmed that they were not employees of Autoclenz. 
            The employment tribunal held that the valeters were employees and, following a series of appeals, the case ended up in the Supreme Court  which also determined that the valeters were employees. 
                  The Supreme Court held that contracts did not reflect the true agreement between the parties and that the reality was that there was no right of substitution, there was mutuality of obligation in relation to the provision and carrying out of work and that the valeters would be paid for that work at rates determined by Autoclenz. The question courts and tribunals should ask in such cases is: what was the true agreement between the parties?  The answer may not necessarily be found in any written agreement. 
                        Businesses looking to engage consultants/sub-contractors should take care to ensure that there is a written agreement which is carefully drafted to minimise scope for finding that the consultant/sub-contractor is in fact an employee, whilst also reflecting the reality of what the relationship is.  This not only affects what employment rights the consultant/sub-contractor has, but also is likely to affect how HMRC views the relationship.  Businesses should seek legal advice should there be any doubts about the employment status of their relationship with a consultant/sub-contractor as it can be a costly lesson if they later discover that there is in fact a contract of employment. 
                              HMRC can claim from businesses unpaid employers national insurance and, to the extent an individual has not accounted for the correct amounts, personal national insurance contributions and income tax, going back up to 6 years  plus interest and penalties  where they find that an individual has been treated as self-employed, when they were in fact an employee.  Businesses can, to an extent, protect themselves when dealing with contractors by including tax indemnities in the terms of the contract. 
                                    Businesses who deal with contractors should also remember that, whilst certain terms are implied into employment contracts, such as in respect of the employees duties regarding confidential information, good faith and also that any intellectual property created by the employee in the performance of his duties will belong to the employer, the same does not apply in the case of contractors and provisions should be included in written agreements to address these points. 
                                           
                                     
                               
                         
                   
             
       
 
 

     
 
 

     
 
 ]]></description>
<category><![CDATA[Employment Law]]></category>
<pubDate>Wed, 03 Aug 2011 13:27:04 +0000</pubDate>
<guid>http://blog.lblaw.co.uk/supreme-court-update-on-establishing-employment-status-314/</guid>
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<title><![CDATA[Employee Entitled to 3 Months Notice Despite Employer Making Ex-gratia Payment]]></title>
<link>http://blog.lblaw.co.uk/employee-entitled-to-3-months-notice-despite-employer-making-ex-gratia-payment-313/</link>
<description><![CDATA[
Payments made purely in connection with the termination of employment will be free of national insurance and, to the extent that they do not exceed 30,000.00, also free of income tax.  However, notice pay and payments in lieu of notice paid in accordance with terms and conditions of employment are contractual payments and therefore subject to tax and national insurance.  For this reason, some employers choose to dismiss employees without notice, thereby in breach of contract, and pay them damages equal to the net pay that they would have earned had they worked their notice.  Dealt with properly, no tax or national insurance (including employees national insurance) is payable in these circumstances, and this can produce substantial savings for the employer.
Publicis Consultants UK Ltd intended to adopt this approach when dismissing its employee, Ms OFarrell, by reason of redundancy.  Ms OFarrell, who was entitled to three months notice, was dismissed with just four days notice.  Publicis notified Ms OFarrell in writing that she would be paid (i) an ex-gratia payment equal to three months salary; (ii) a statutory redundancy payment; and (iii) in respect of accrued but untaken holiday.  Payments (i) and (ii) were confirmed to be free of tax and national insurance deductions. 
Ms OFarrell submitted claims to an employment tribunal that the Company had committed a breach of contract by failing to pay her her three months notice pay.  The employment tribunal upheld her claims and the Company appealed to the Employment Appeal Tribunal, arguing that the ex-gratia payment amounted to damages in respect of Ms OFarrells dismissal without proper notice.
The Employment Appeal Tribunal held that, on a correct construction of the letter confirming the payments, the payment was truly ex-gratia, i.e. a gift and the Claimant was contractually entitled to an additional amount equal to three months notice pay. 
Employers seeking to dismiss in breach of contract would be well advised to make it clear in a letter outlining a severance payment, that such a payment is inclusive of damages for dismissal without notice.  Further, if the employer is contractually entitled to make a payment in lieu of notice, the letter should make it clear that it has elected not to exercise its right, and is dismissing in breach of contract in order to prevent any later claim by the Revenue for tax, national insurance, interest and penalties on the amount paid.  It may be prudent to make any enhanced severance payment conditional upon the employee entering into a compromise agreement, which would not only clarify the nature of the payment, but also  if properly drafted - compromise any claims the employee might have, including a claim for notice pay. 
An important point worth noting is that a breach of contract will invalidate any post-termination restrictive covenants and confidentiality provisions in place.  Therefore, if an employee is considered to be a commercial threat, employers should not dismiss employees to whom such post-termination obligations would apply without notice in breach of contract, unless the employee has entered into a compromise agreement which repeats the provisions and confirms that they will remain in force notwithstanding the fact that the employment has terminated.
Employers are encouraged to take advice from a specialist employment lawyer before any dismissal in order to avoid potentially significant liabilities in connection with breach of contract, unfair dismissal and/or unlawful discrimination and to ensure that the most suitable method of termination is applied.  We often find that the tax savings which result from our advice in connection with a dismissal will exceed  sometimes by a considerable margin  the cost of the actual advice.


     
 
 
 ]]></description>
<category><![CDATA[Employment Law]]></category>
<pubDate>Thu, 28 Jul 2011 14:28:07 +0000</pubDate>
<guid>http://blog.lblaw.co.uk/employee-entitled-to-3-months-notice-despite-employer-making-ex-gratia-payment-313/</guid>
</item>
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<title><![CDATA[Employment Law Update - Notice Periods &amp; Effective Date of Termination]]></title>
<link>http://blog.lblaw.co.uk/employment-law-update-notice-periods-effective-date-of-termination-289/</link>
<description><![CDATA[
Employees who wish to bring a claim for unfair dismissal, and certain other employment-related claims, must submit their claim to an employment tribunal within 3 months of the effective date of termination. This time period will be extended only in limited circumstances, so it is critical to understand when the 3 month period begins.Where an employees employment is terminated with notice, the effective date of termination is the date on which the notice expires. The period of 3 months within which an employee must submit a claim to the employment tribunal includes the effective date of termination itself (e.g. if a period of notice expired on 9 May 2011, any claim for unfair dismissal must be submitted no later than 8 June 2011).The Employment Appeal Tribunal has recently clarified what the effective date of termination is where the employment is terminated on notice. Dr Wang was given 3 months notice of dismissal by his employer, the University of Keele, by a letter that was emailed to and read by Dr Wang on 3 November 2008. Dr Wang, having sought legal advice and believing the effective date of termination to be 3 February 2009, submitted a claim to the employment tribunal on 2 May 2009, in the belief that this was the last day of the 3 month period for submission.The University argued that, upon the ordinary construction of the letter, as notice of dismissal was given and received on 3 November 2008, the 3 month notice period expired on 2 February 2009 and therefore the last day Dr Wang could submit his claim was 1 May 2009, meaning he had lodged his claim out of time. The employment tribunal upheld this and so Dr Wang appealed.The Employment Appeal Tribunal held that notice did not start to run until 4 November 2008. It also held that notice can only have immediate effect if the employees contract of employment provides it should do so. Therefore, Dr Wangs notice did not expire until 3 February 2009 and so his claim had been submitted in time, and the employment tribunal had jurisdiction to hear it.Employees should, wherever possible, submit tribunal claims well within the applicable limitation periods to avoid any possible complications with claims being brought in time, not only because of possible confusion over when the limitation period ends, but also in case there is an error in the claim form or, depending on how the claim is sought to be delivered, a postal delay or glitch with an email or fax. Employers may wish to review the notice provisions in their contract of employments in light of this decision. They should also take note of this decision when deciding to dismiss with notice an employee who has less than a years continuous service (meaning they do not usually have unfair dismissal protection) to ensure that notice of dismissal is served early enough to prevent the effective date of termination being over 12 months from the date the employee commenced employment, leaving them at risk of a potential unfair dismissal claim. Employers should also note that, in the absence of a fundamental breach of contract, attempts to terminate a contract of employment on short notice will be unsuccessful, as the statutory minimum notice period will always be treated as added onto any continuous service. 
]]></description>
<category><![CDATA[Employment Law]]></category>
<pubDate>Mon, 16 May 2011 10:21:14 +0000</pubDate>
<guid>http://blog.lblaw.co.uk/employment-law-update-notice-periods-effective-date-of-termination-289/</guid>
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<title><![CDATA[Shake Up of Drink Drive Laws - A Sobering Thought?]]></title>
<link>http://blog.lblaw.co.uk/shake-up-of-drink-drive-laws-a-sobering-thought-280/</link>
<description><![CDATA[
Following a recently commissioned Government report on drink and drug driving, changes are proposed to the current law for the first time in over 40 years.
Although drink drive related deaths have fallen by more than three quarters since the late 1970s' - despite the number of drivers trebling - there are still a hardcore that ignore the law whom the Government are now set to target.
The current legal limit is set to remain unchanged despite pressure from campaigners to lower it.
One key change to the law will be to remove the statutory option available to people who provide a breath sample under a certain amount but over the current limit.
Finally there will also be the introduction of new drug testing machines which will be able to identify drugs such as cannabis, amphetamines and ecstasy.  In addition, the law will also be amended from its current position to increase the number of convictions.
If you have any questions regarding the changes to the drink/drug driving laws, or indeed any other aspect of motoring law, then please contact either myself or Chris Grainger on 01952 211035.]]></description>
<category><![CDATA[Criminal Law]]></category>
<pubDate>Tue, 05 Apr 2011 12:40:10 +0000</pubDate>
<guid>http://blog.lblaw.co.uk/shake-up-of-drink-drive-laws-a-sobering-thought-280/</guid>
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<item>
<title><![CDATA[Budget Key Points - March 2011]]></title>
<link>http://blog.lblaw.co.uk/budget-key-points-march-2011-276/</link>
<description><![CDATA[
The following summarises today's budget:
Personal: 
Personal tax allowance to rise by 630 to 8,105 in April 2012 
Direct tax to be indexed by Consumer Prices Index (CPI), which excludes mortgage costs, from April 2012 
Consultation on merging National Insurance and Income Tax. Not proposing to increase taxes for pensioners 
50p tax rate should be a temporary measure 
Income Tax relief on Enterprise Investment Scheme to increase from 20% to 30% in April 2011
Charge on non-domiciled taxpayers to increase from 30,000 for those here for seven years to 50,000 for those in the country for 12 years
Businesses: 
Corporation Tax reduced by 2% from April 2011 - rather than 1% as previously announced - and to fall by 1% in each of the next three years to reach 23%
Small business rate relief holiday extended by one year to October 2012, at a cost of 370m
Entrepreneurs Relief scheme to be doubled to 10m from April 6
Small companies' research and development tax credit to rise to 200% in April and 225% in 2012 
A new 5.75% rate on overseas financing income coming into the UK
Sins: 
No new increase on alcohol or tobacco
Tobacco duty rates to increase by 2% above inflation, as previously announced. Tobacco duty regime reformed 
Fuel & Vehicles:
Cutting fuel duty by 1p per litre this year. To take effect in petrol stations from 6pm tonight 
Inflation rise in fuel duty planned for next week to be delayed until 2012
Fuel duty escalator that adds 1p to fuel duty on top of inflation each year to be cancelled for the rest of this Parliament
Vehicle Excise Duty to increase in line with inflation, and frozen for heavy goods vehicles 
Homeowners: 
250m fund for first-time buyers under shared-equity scheme to help 10,000 families]]></description>
<category><![CDATA[Edward Rees]]></category>
<pubDate>Wed, 23 Mar 2011 15:10:54 +0000</pubDate>
<guid>http://blog.lblaw.co.uk/budget-key-points-march-2011-276/</guid>
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<title><![CDATA[Amendments Made to Employment Equality Regulations 2011]]></title>
<link>http://blog.lblaw.co.uk/amendments-made-to-employment-equality-regulations-2011-273/</link>
<description><![CDATA[
Following on from my original blog of 22 February, a revised draft of the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 has now been released following the concerns raised regarding the previous draft. 
The main concern raised by practitioners was that according to the first draft, if an employee was over 65 on 6 April 2011, even if he had already been given notice of retirement to take place after that date in accordance with current legislation, the employer would not have been lawfully entitled to retire that employee unless the retirement age could have been objectively justified. This has now been corrected and as long as the employee has been given notice of the employers intention to retire them by 5 April 2011 and the employee is 65 or will be by 30 September 2011, they can be retired lawfully on the grounds of retirement. 
To comply with the current legislation, an employer has to give a minimum of 6 and a maximum of 12 months notice of its intention to retire so it would appear at first that the last date an employer can retire an employee under the current legislation is 4 April 2012 (12 months from 5 April 2011). However, the legislation enables employers, following a request from the employee (which must be at least 3 months before the intended retirement date), to postpone a retirement date by up to 6 months and then to compulsorily retire the employee on the new date without taking any further procedural steps Therefore if, on 5 April 2011, an employer gives 12 months notice of intention to retire an employee on 4 April 2012, it could agree an extension up to 3 October 2012 without the need to give any further notification and can retire the employee under the current legislation. 
The Regulations are certainly not straightforward! If any employers are unsure how they will apply to their current employees they should contact Lanyon Bowdlers employment team for further advice. ]]></description>
<category><![CDATA[Employment Law]]></category>
<pubDate>Thu, 03 Mar 2011 11:55:27 +0000</pubDate>
<guid>http://blog.lblaw.co.uk/amendments-made-to-employment-equality-regulations-2011-273/</guid>
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