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New ACAS guidance on bereavement

ACAS has published a new good practice guide on managing bereavement in the workplace, including a model bereavement policy.

The Government decided not to include a statutory right to bereavement leave during the progress of the Children and Families Act 2014 through Parliament, on the basis that it was not “feasible” to legislate for such leave and preferring the more flexible approach of non-statutory guidance.

The new guidance has been developed by ACAS in conjunction with Cruse Bereavement Care and other organisations.

It sets out the legal position in relation to bereavement, including an employee’s entitlement to take a “reasonable” period of unpaid leave following a bereavement under the existing provisions permitting time off for dependants (section 57(A) Employment Rights Act 1996).

The guide also provides practical guidance on managing bereavement in the workplace, including how to deal with the immediate aftermath on being notified of a bereavement, communicating with the employee affected and how to disseminate the information in a sensitive manner.

ACAS recommends that whilst not a legal requirement, having a clear written policy in place and providing an entitlement to a defined period of paid leave in the event of the death of close family members will help an employee to feel supported following a bereavement, and may make it easier for them to return to work.  A short model policy is included at the end of the guide.

The guide also suggests training for managers and HR staff in having effective and compassionate conversations with bereaved colleagues.

ACAS emphasises the fact that bereavement affects individuals very differently and it encourages employers to take a flexible approach in relation to the individual taking additional time off, and considering adjusting their duties and hours of work once the employee is able to return.

A copy of the good practice guide is available on the ACAS website.

Promissory notes, personal representatives and probate

What happens when the deceased owed, or was owed, money? Our wills, probate & tax team explains.

Click here to view the article in full published by The Gazette.

Wills and LPAs: Why the “DIY” approach might cost you in the long run

The team at Steeles Law was pleased to note coverage in today's Eastern Daily Press, in which well-known television presenter and founder of MoneySavingExpert.com Martin Lewis advised that every adult should look at getting a Lasting Power of Attorney (LPA).

In the article, Mr Lewis highlights his concern that fewer than one in six adults in the UK have an LPA in place and points out the potential risks that this brings – from “locking down” your assets, should you lose mental capacity, to “stopping your family paying for your care”.

As experienced legal practitioners in this area, we know only too well the potential pitfalls of not putting your affairs in order.  We also know that, for many, it can be tempting to put off thinking about Wills and LPAs – because they can raise emotionally difficult topics; because we do not consider ourselves to be “old”; or simply because we do not have the time.

Commenting on Mr Lewis’ article, our specialist team said:

“It is great to see Martin Lewis raising awareness of the importance and value of LPAs in the national and regional press.

However, Steeles Law, whose wills and probate team includes members of Solicitors for the Elderly (SFE), would like to reiterate that LPAs are extremely important documents and putting them in place should not be considered a simple form-filling exercise.  A specialist legal adviser will not simply complete a form for the donor of an LPA but also provide a full service of oral and written advice, usually both to the donor and the chosen attorneys, and will be able to give that advice based on their knowledge of the law and experience of working with vulnerable and incapable adults and their families.

Whilst using a “DIY” method over using a solicitor may be cheaper in the short term, a recent study by SFE found that after receiving a consultation with a specialist solicitor, all participants said they felt more confident about their ability to make informed and appropriate choices, and most of them made significant changes to the decisions expressed in their LPAs.  The SFE study also showed that DIY methods carry a great deal of risk through potential repercussions of weaknesses or flaws in the document itself, and a lack of consideration or checks to safeguard for vulnerable donors.”

For further advice, please contact us.

 

Dealing with the death of a loved one: The practical aspects

The death of a loved one is a difficult time. As well as dealing with grief and emotions, there can be a great deal to organise by way of funeral arrangements, registering the death and dealing with the deceased's finances.

Whilst it is not compulsory to instruct a lawyer to administer a deceased person’s estate, it is strongly recommended that you take expert advice.  Over many years, the specialist private client team at Steeles Law has experienced families trying to deal with complex estates by themselves with no professional advisers – until it is too late.

Scenario One

Mr A died having made no Will.  His two children inherited the estate jointly and administered it.  Mr A’s assets included a London property, which was sold by the children sometime after their mother’s death.  The property in London had increased substantially in value from the date of death valuation to the date it was sold.  This gave rise to a large capital gains tax liability.

With the appropriate legal advice, the children could have planned for such a tax liability and considered their options sooner, rather than later.  The associated worry and stress for the family could have been eased with a professional adviser.

Scenario Two

When Mr B made his Will many years ago, the best inheritance tax advice at the time was to include a trust within his Will.  Mr B died in 2013.  His executors did not take legal advice.  They distributed all of Mr B’s estate to Mrs B, ignoring the trust within the Will.

Trusts in Wills can appear complex but should not be ignored.  If the executors had instructed probate lawyers when Mr B died, they would have been made aware of the inheritance tax position and advised on their options and other planning opportunities, as appropriate.  All of the necessary paperwork could have been drafted and the trust amended or wound up to best suit the family circumstances, in accordance with the law.  Furthermore, when Mrs B died three years later, we would have been able to produce the information to administer her estate quickly and efficiently, rather than having to sort out the consequences of Mr B’s estate first.

We could go on – scenario three involves the warring siblings of the late Mr C, where an impartial professional lawyer would have been useful from the outset; scenario four is about the estate of Mrs D, whose homemade Will was not clear and unintentionally left her son without inheritance; scenario five…etc.

Steeles Law has an experienced, professional but caring team of Wills and probate solicitors and legal advisers who advise on all aspects of administering a loved one’s estate.  We can take the burden of responsibility away from the family at such a difficult time.

Don’t be another scenario and take specialist legal advice.

Employment update: Wednesday 29 March 2017

Our popular annual employment update breakfast is taking place from 7.45am on Wednesday 29 March 2017 at The Targetfollow Room, Theatre Royal, Norwich NR2 1RL.

The update will cover essential and forthcoming developments in employment law, plus a look at other recent note-worthy caselaw developments, including updates in the long running holiday-pay saga, changes to exit payments, Brexit’s impact on employment law – what we know so far, the usual round up of case law developments and much, much more…

The update will be delivered by qualified and experienced lawyers who specialise exclusively in employment law, with the emphasis on the practical implications of the law for your business.  Delegates find these briefings a fantastic opportunity to keep up-to-date with the latest legal developments:

 “An excellent update, a ‘must’ attend for the HR professional.  Very good value for money!” (previous delegate)

The update is taking place on Wednesday 29 March 2017, at The Targetfollow Room, Theatre Royal, Norwich NR2 1RL.

Registration and coffee will be at 7.45am; a selction of breakfast baps will be served from 8.00am.  The update will start at 8.30am and will finish at approximately 10am.

The cost of the update is just £30 plus VAT per person.  If you book one place, you can book a second place at half price, for just £15 plus VAT.

If you would like to attend please contact Gemma or Georgina, by email (marketing@steeleslaw.co.uk) or on 01603 598000.  Please let us know if you have any dietary or other special requirements when booking your place.  We do hope you can join us and look forward to seeing you on 29 March 2017.

If you are unable to come but would like further information about the work we do, please contact the employment team: employment@steeleslaw.co.uk.  Apart from our regular seminars, we also carry out interactive in-house training sessions designed for managers and HR professionals, which can be tailored to suit your needs.

 

The enforceability of mobility clauses in contracts of employment

K is an engineering, technology and services company focusing on work in the oil and gas industry. They previously had two offices that employees worked out of; Greenford and Leatherhead. The claimants, F and E, worked out of the Greenford office for the duration of their employment.

Their contracts of employment contained the following mobility clause:

“The location of your employment is…but the company may require you to work at a different location including any new office location of the company either in the UK or overseas either on a temporary or permanent basis. You agree to comply with this requirement unless exceptional circumstances prevail.”

K had been holding discussions regarding workloads and office capacity, and subsequently proposed to close the Greenford office and move all employees to the Leatherhead office. F and E were both consulted individually about the proposed relocation of their work. Both employees noted the huge increase in distance to commute, and E also noted his 25 years of service, coupled with the fact that he was retiring the following year so wished to reduce his workload, not add hours onto his commute time. K responded to the claimants informing them that the decision was confirmed and they were expected to move to the Leatherhead office.

F attempted to continue working at Greenford, but was denied access to the office by security. E refused to attend work at Leatherhead and once the Greenford office closed did not attend work again.

Both claimants were invited to attend disciplinary hearings for their failure to attend work and both claimants were dismissed with Kellogg stating that their failure to attend amounted to serious misconduct.

The claimants brought a claim in the Employment Tribunal (ET) for unfair dismissal and statutory redundancy payments, while K relied on the mobility clause above to argue that the claimants were dismissed fairly for not complying with the terms of their contract of employment. The ET found that the claimants had been unfairly dismissed and both claims succeeded for the following reasons:

  • Neither claimant had been required to work anywhere else during their employment other than Greenford.
  • The steps taken to alleviate the disadvantages to employees of further travel requirements (including 6 month travel compensation and reduced hours for employees travelling on the M25) were not sufficient to alleviate F and E’s disadvantages.

The K appealed the decision.

Alongside other findings relating to the correct grounds for dismissal which are not critical to this note, the Employment Appeal Tribunal (EAT) held that the mobility clause within the contracts of employment was unenforceable. As a result, the instructions given to the claimants were unreasonable and so dismissal for non-compliance of the clause was unfair. Whilst not radically altering the existing body of case law relating to mobility clauses, this case demonstrates yet again that simply relying on a mobility clause may well not be sufficient to enact a fair dismissal, and care should always be taken when attempting to rely on such a clause.

Kellogg Brown & Root (UK) Ltd v. Fitton [2016] UKEAT 0205_16_2111 (21 November 2016)

 

 

Living leases workshop delivered in partnership with the Ethical Property Foundation

Michael Fahy delivered an insightful presentation, alongside Ian Parker of the Ethical Property Foundation, to attendees at a "Living Leases" workshop held in Norwich on 13 December 2016.

Delegates were guided through a series of important topics such as how to negotiate leases, manage their property to save money & use property to deliver more to their beneficiaries.

If you missed the workshop or would like to see the video again, click here.  If you would like further information on how Steeles Law can help you, contact us today.

Wheelchair user wins equality case against bus company

After a long and arduous battle, Mr Doug Paulley has succeeded in his claim against FirstGroup Plc under the Equality Act 2010. On 18th January 2017 the final judgment was handed down in favour of Mr Paulley.

In 2012, Mr Paulley, a wheelchair user, waited for a bus at Wetherby bus station. He intended to take this bus to Leeds, where he then planned to catch a train to Stalybridge to have lunch with his parents. However, when the bus arrived, Mr Paulley found himself turned away on account of a pushchair user occupying the allocated wheelchair area.

The driver of the bus in question had asked the woman with the pushchair to fold the pushchair up in order to allow Mr Paulley to board the bus. However, when this woman refused, Mr Paulley was told he would have to wait for the next bus. Furthermore, when Mr Paulley asked the driver if he could fold up his wheelchair and use an ordinary passenger seat, the driver refused due to there being no way of securing the wheelchair safely during the winding bus route ahead.

Mr Paulley brought the case to the County Court and argued that in refusing him access to the bus, FirstGroup Plc had failed to make the “reasonable adjustments” required in section 29(2) of the Equality Act 2010. It is interesting to note that FirstGroup Plc’s policy on the matter when Mr Paulley was refused access was different to the policy presented at the time the matter was taken to Court. However, both policies stated that where a passenger refused to move out of a wheelchair space the wheelchair user would have to wait for the next bus. Interestingly though, FirstGroup Plc still argued that their policy was adequate and did not breach the Equality Act 2010. In the County Court, a judgment was handed down in favour of Mr Paulley, because they had breached their duties under the Equality Act 2010 to provide “reasonable adjustments” for wheelchair users.

FirstGroup Plc appealed the decision and it went to the Court of Appeal, where a decision was handed down in favour of FirstGroup Plc. In this judgment it was argued that while Mr Paulley was at a disadvantage, he had not been put at this disadvantage by FirstGroup Plc’s policy itself and on this basis the question of whether FirstGroup Plc had made “reasonable adjustments” for wheelchair users in the policy was moot.

In the Supreme Court, however an arguably more interesting judgment was given. On the face of it, it would seem that the Lord Justice’s and Lady were mostly opposed to the decision handed down in the County Court in the first instance. However, after close inspection it becomes clear that while the Supreme Court judges agree with the decision itself handed down in the County Court, they do not agree with the reasons behind that decision. Certainly, Lord Neuberger stated that he was unwilling to hold that FirstGroup Plc had breached their duty under the Equality Act 2010 to make “reasonable adjustments” for wheelchair users. However, a theme seemed to appear in that while FirstGroup were not believed to have breached their duties under the Equality Act 2010, they should have done more to persuade the passenger with the pushchair to vacate the wheelchair space for Mr Paulley. In essence, a middle ground must be found between physically forcing a passenger to vacate a wheelchair space and simply taking the first refusal and moving on.

In conclusion, the Supreme Court ruled in favour of Mr Paulley in that FirstGroup Plc should have done more than simply request the lady with the pushchair to move. On the face of it, this may arguably be the morally correct judgment. However, it certainly leads to grey areas within the law and service providers of all nature are likely to be affected by the legal implications of this judgment.

If you want to know more about the impact of this case, or have any equality issues you wish to discuss, get in touch.

This article is for general guidance only. It is not to be relied upon and professional advice should always be taken on specific circumstances.

 

The importance of establishing (and recording) contractual terms

The Court of Appeal has, by a majority decision with Lady Justice Arden dissenting, held that an implied term cannot fill a gap in an otherwise incomplete contract.

Mr Wells was selling 14 newly developed flats, seven of which he was struggling to find buyers for. A friend put him in touch with Mr Devani and they spoke by phone organising the sale of the seven flats.

Mr Devani claimed that during their call he told Mr Wells that his fees for arranging the sale were 2% plus VAT on the sale price. Mr Wells alleged that Mr Devani remained silent on the topic of fees. However, the issue of when the commission payment would be triggered was not discussed.

Nevertheless, Mr Devani found a buyer and once the sale had been agreed (but before exchange of contracts) Mr Devani sent Mr Wells an email which included his terms and conditions, stating that his fees were to be paid on exchange of contracts. On completion of the sale of the flats, Mr Devani sent Mr Wells an invoice for £42,000 plus VAT, which Mr Wells refused to pay.

The judge at first instance found that it was more likely than not that the amount of fees had been discussed and so held a valid contract existed. The judge held that the issue of when commission was to be paid could be dealt with by implying a term into the contract. However, the judge also held that Mr Devani’s failure to clearly inform Mr Wells of the point at which payment was due amounted to a culpable failure under the Estate Agents Act 1979. As a result, the amount due to Mr Devani was reduced by one third.

Mr Wells appealed against the finding of liability to pay Mr Devani, and Mr Devani cross-appealed the decision to reduce the money owed to him.  The question for the Court of Appeal was whether or not a legally binding contract existed between Mr Wells and Mr Devani that required Mr Wells to pay Mr Devani any commission.

It is a well-established principle that for a binding contract to be found to exist, the Court must be satisfied that an honest and reasonable businessman would conclude from the communications between the parties and their conduct, that all material terms of the contract had been agreed. In this case, the parties had not agreed on the event which would trigger Mr Devani’s right to payment. The question then became whether a term could be implied about when payment would fall due in order to make an enforceable contract.

After much discussion, Lord Justice Lewison and Lord Justice McCombe allowed Mr Well’s appeal and dismissed Mr Devani’s cross-appeal.

Lord Justice Lewison, giving the lead judgment, stated that it is not possible to use implied terms in order to overcome a failure to agree a the relevant terms and make the contract for the parties. Instead, terms can only be implied into a contract which has already been made. In this case, a term about when payment of commission to Mr Devani was due, was of such fundamental importance that without it, the contract in this case was not complete.

Lord Justice Lewison also agreed with the decision at first instance that Mr Devani had committed a culpable failure under the Estate Agents Act 1979 and so would not have been entitled to full amount of pay in any event. Lord Justice McCombe agreed on all points made by Lord Justice Lewison.

However, the dissenting judgment of Lady Justice Arden highlights the subjective nature of contract formation cases as, on the facts, she agreed with the judge at first instance. The differences in these judgments highlight how subjective the area of contract formation can be. Therefore, the Court of Appeal’s decision highlights the importance of establishing and recording key contractual terms.

If you want to know more about the impact this decision could have on your business or have any contractual issues you wish to discuss, get in touch.

This article is for general guidance only. It is not to be relied upon and professional advice should always be taken on specific circumstances.

 

Can an employer rely on expired written warnings?

In Stratford v Auto Trail VR Ltd UKEAT/0116/16 the Employment Appeals Tribunal considered whether an employer taking account of a history of expired warnings meant that the employee's dismissal was unfair.

Facts

Mr S started work for Auto Trail in November 2001. As of January 2014 he had received 17 individual warnings for various infractions, the most recent two being a nine-month warning for failing to make contact while off sick and a three-month warning for using company machinery and time to prepare materials for personal purposes. Importantly however, there were no live warnings on Mr S’s file when the events that led to his dismissal occurred, as the recent final written warning had expired.

On 15 October 2014, Mr S was seen with his mobile phone whilst on the shop floor. This was “strictly prohibited” by Auto Trail’s employee handbook. Following the proceeding disciplinary hearing, the production manager decided to dismiss Mr S with 12 weeks’ pay in lieu of notice.

In the letter, which outlined his reasoning, the production manager noted that the offence was not one of gross misconduct and would normally attract a final written warning. Crucially though, he stated the following:

“‘In addition to many informal conversations, this was the eighteenth time that [Mr S’s] behaviour had been the subject of formal action […] There was no reason to believe that there would not be a similar conversation in the near future. While [Mr S’s] actions may not always be intentional, he did not understand their consequences and it was not believed that this would change”

After his internal appeal was unsuccessful, Mr S claimed unfair dismissal.

Employment Tribunal

The tribunal rejected the claim. The judge held that Mr S had been dismissed by reason of conduct consisting of his disciplinary history and, as expressed in the production manager’s letter, Auto Trail seeing no reason to believe that this trend of poor behaviour would change. Auto Trail had been entitled to have regard to Mr S’s disciplinary record and his attitude to discipline in general and had been entitled to decide that enough was enough. In those circumstances, the dismissal was fair.

Mr S appealed.

Employment Appeals Tribunal

The EAT dismissed the appeal and upheld the tribunal’s decision that Mr S was fairly dismissed in all the circumstances. The fact of previous misconduct, that a final warning had been given in respect of it and that the final warning had expired at the date of the later misconduct would all be objective circumstances relevant to, but not determinative of, the question of whether the employer acted reasonably or unreasonably.

According to the EAT, expired warning does not mean that the earlier misconduct in itself is irrelevant. There is a broad range of circumstances which employers can take into account and, rather than strictly looking at the expiry of the final written warning, the employer could consider the overall pattern of conduct.

A distinction was drawn between using expired warnings to elevate conduct into a dismissible offence (which was impermissible) and having regard to the previous conduct, regardless of the fact that it was the subject of an expired warning, when deciding on sanction for a dismissible offence (which was permissible).

On this basis, the employer had been entitled to take into account the employee’s previous record and the manager’s prediction as to how the future was going to go when making its decision.

Comment

In this case the court clearly struggled with the concept that an employer, when considering dismissal of an employee for misconduct, should be forced to ignore an employee’s previous misconduct because a final written warning for it had expired. The employee’s right to be treated fairly must be carefully balanced against the employer’s right to remove members of staff for repeated bad behaviour. This means the fairness of relying on previous expired warnings will always depend on the facts and circumstances of each individual case. This raises the question in what circumstances and for what purposes can expired warnings be taken into account?

There is a very subtle distinction in that it will still be unreasonable for an employer to rely on an expired warning as the principal reason for dismissal, but, it may not be unreasonable for an employer to take into account previous expired warnings and the underlying misconduct in circumstances where these are not the principal reason for the dismissal.

In practice, falling on the right side of this seemingly artificial distinction may be difficult. Employers should be certain that they can justify why they believe the presence of previous expired warnings is relevant and if not, take advice on the issue.

This case also highlights the need for carefully drafted disciplinary policies which anticipate exceptional circumstances when dealing with “repeat offenders”. Employers should take time to tailor written warnings to each situation having regard for the previous number of warnings an employee has received. The ACAS Code indicates that although final warnings should normally have a time limit of 12 months, that need not always be so; adopting a ‘one-size-fits-all’ approach can lead to situations similar to those demonstrated in this case. If the employer feels that the misconduct justifies it, it can consider imposing a longer penalty. This may save the employer from needing to rely on expired warnings in the future. Employers are encouraged to seek legal advice if they are uncertain on when to increase or decrease a sanction for misconduct.

Case

Stratford v Auto Trail VR Ltd UKEAT/0116/16, 31 October 2016. (Bailii)   If you want to know more about the impact of this case, or have any employment issues you wish to discuss, get in touch.

This article is for general guidance only. It is not to be relied upon and professional advice should always be taken on specific circumstances.