January 2009 News Articles
Appeal Court rules in favour of father subjected to ‘gay taunting’
The Court of Appeal has ruled that a heterosexual father of three who was subjected to persistent homophobic banter from his work colleagues can bring a claim of harassment under anti-discrimination laws.
Stephen English, who is married and has three children, worked as a salesman for a company in Portsmouth. He claimed that his work colleagues started calling him names and making homophobic comments to him after they found out that he had gone to a public school and that he lived in Brighton.
Mr English found the taunting so distressing that he felt he had to give up his job. He made a complaint of harassment under the Employment Equality (Sexual Orientation) Regulations 2003 but the tribunal rejected his claim because he was not actually gay and his work colleagues did not believe him to be gay even though they taunted him.
This meant he was not protected by the regulations because the taunting was not due to his sexual orientation but rather because his colleagues were reacting to stereotypical factors such as his having attended a public school and the fact that he lived in Brighton.
That ruling was upheld by the Employment Appeal Tribunal. However, it gave Mr English permission to take the case to the Court of Appeal so the law could be clarified. The Equality and Human Rights Commission supported Mr English throughout the case.
The Court of Appeal has now ruled in Mr English’s favour by a 2-1 majority. It said it did not matter whether or not Mr English was gay. The key point was that he had repeatedly been taunted as if he were gay. That was intended as an insult to his dignity and made his working environment intolerable.
Lord Justice Sedley said: “You cannot legislate against prejudice. You can set out in specified circumstances to stop people's lives being made a misery. The incessant mockery created a degrading and hostile environment and it did so on grounds of sexual orientation.”
Accountancy firm fails to recover money from former partner
The danger of overlooking a potentially important point of contention when resolving a dispute was highlighted in a recent case involving an accountancy firm and one of its former partners.
The firm had arranged a loan facility with a bank using a life insurance policy taken out by one of its partners as security. The firm paid the premiums on the understanding that the policy was used for its benefit and was listed as one of its assets.
Later, the business converted to a limited liability partnership. Shortly afterwards, a dispute arose between the partner who had taken out the policy and the others. They eventually agreed to mediation and the firm made an offer to the dissenting partner to finally settle the dispute between them.
The agreement stated that the settlement would be full and final and so neither side would be able to take further action against the other.
Following this settlement, the partner surrendered the policy and kept the proceeds for himself. The remaining partners objected saying he merely held the policy as a trustee and began proceedings to recover the money.
They lost the case, however. The court ruled that the purpose of the settlement was to finally resolve the differences between them. It was evident that both sides had wanted to draw a line under their relationship and remove anything that might lead to claims against each other in future.
This meant that the firm had relinquished any claim it might have against the former partner in relation to the life policy and therefore he was free to deal with it as he wished.
The judge also pointed out that the negotiations that led to the settlement had been carried out by commercial people dealing with each other in a detached manner. In these circumstances, the former partner was under no obligation to alert the other side to the possible consequences of their actions.
He was entitled to assume that they could make their own assessment of how the terms of the settlement would work out.
EU votes to end Britain’s opt-out from 48-hour maximum working week
The European Parliament has voted to scrap the UK’s right to opt out of the 48-hour maximum working week.
MEPs voted by a majority of 148 that the opt-out should end within three years of the new EU Working Time Directive being adopted. The vote puts the parliament in conflict with the Council of Ministers which negotiated a deal with the UK government last summer allowing the opt-out to continue in return for Britain accepting improved rights for temporary workers.
It means that the Council and the Parliament will now have to negotiate a compromise. It they can’t reach agreement then the directive will fail and the opt-out will remain in place. Those negotiations should be concluded by May.
If the directive is adopted then the opt-out clause will end three years later and UK workers will not be allowed to work more than an average of 48 hours a week, even if they want to do so. We shall keep clients informed of developments.
New measures governing employer pension schemes announced
The Government has announced new measures which it says will ease the administrative and financial burden on employers running their own pension schemes.
One of the key changes is that employers will be able to “self-certify that their pension scheme meets the quality standard based on the expected value of pension contributions to be made over the course of each coming year”.
However, employers will only be able to self-certify in this way if they are confident that all members of the scheme remain on course to receive the minimum level of pension savings.
Under the provisions of the new Pensions Bill, the required quality standard for money purchase schemes is that members receive contributions of 8% of qualifying earnings, of which 3% is contributed by the employer.
The rates for the General Levy and the PPF Administration Levy for 2009/10 are to be frozen at the 2008 level.
Rosie Winterton, the Minister of State for Pensions, said: "These reforms are based on a broad consensus among stakeholders. For our reforms to work it is vital that wherever we can we make them simple and straightforward for employers to implement. This will be to their benefit and their employees.
"The amendments will mean that employers who are confident their workers will receive the new minimum level over the year can certify to this extent as opposed to doing so for each individual over each pay period.
"By freezing the General and Administration levies at this year's level I believe we are meeting the commitment we made last year to provide levy cost stability for pension schemes."
The Government is now preparing draft regulations relating to the certification procedure. These will be issued for formal consultation in the next few months.
The new minimum level of pension saving is scheduled to come into force in 2012.
EU wants to standardise consumer rights across Europe
The UK Government has begun a consultation process on EU plans to develop a uniform set of consumer rights across Europe.
The Consumer Rights Directive is intended to harmonise rules in several important areas such as protection against unfair contract terms and rules on faulty goods. There will also be new rules on internet shopping and door-step selling.
The proposed measures include a 14-day cooling off period for goods bought online or on the doorstep and more consistent protection when goods are not delivered.
Another important proposal concerns a consumer’s rights when goods are found to be faulty. At present in the UK, the customer has the right to reject the faulty goods and ask for a refund. The European Commission is proposing a different system which would allow the trader to offer to repair or replace the faulty item. A refund would only be obligatory in a more limited set of circumstances.
The consultation period ends on 2nd February.
Meanwhile, the Department for Business Enterprise and Regulatory Reform has asked the Law Commission to consider legal remedies for consumers who discover that an item they buy doesn’t conform to contract.
We shall keep clients informed of developments.
Shedding light on how the Housing Act views a window
The Lands Tribunal has held that windows are part of a property’s structure under the Housing Act and it was therefore reasonable for a landlord to include the cost of repairing them in the tenant’s service charge.
The case involved Sheffield City Council and one of its tenants. Under the terms of the lease, the authority had covenanted to repair the exterior of the building and also to carry out improvements if it thought them to be desirable.
The reasonable costs of such work would be payable by the tenant through the service charge. The authority informed the tenant that it intended to replace the windows in her block of flats to improve the thermal comfort and lower heating costs. She was given an estimate of the cost of the work.
The tenant then challenged the reasonableness of the plan under the Landlord and Tenant Act 1985.
The Leasehold Valuation Tribunal (LVT) held that the windows weren’t part of the exterior and therefore the authority had no obligation to repair or renew them. It also found that the reasonable cost of carrying out the work was less than the authority had suggested and should be reduced.
The authority appealed to the Lands Tribunal which held that under the Housing Act 1985, external windows were part of both the exterior and the structure of the building to which they belonged. The tribunal was wrong therefore to conclude that the reasonable cost of carrying out the work could not be recouped by the authority as part of the service charge. However, the tribunal had been right to say that the amount the authority wanted to charge was not reasonable and should be reduced.
The authority therefore won its appeal as far as its right to carry out the work was concerned but lost in relation to the reasonableness of the amount it wanted to charge the tenant. The LVT’s order reducing the figure was allowed to stand.
Women win equal pay claim against local authority employers
A group of women local authority workers have won their equal pay claim after bonuses being paid to their male colleagues were held to be a sham.
The women involved held a variety of posts such as care assistant, area scheme co-ordinator in the housing department, office cleaner and minibus driver. While assessing their right to better pay they compared their roles and responsibilities to men doing such jobs as trade supervisor, joiner, electrician, road sweeper and refuse driver.
The women believed their workload and responsibilities to be on a par with their male counterparts. In spite of this, the men received bonuses that were not available to the women employees.
The local authority argued that the bonus schemes were designed as incentives to boost productivity.
The employment tribunal rejected this argument, however, and found that the bonuses were a sham because they could have little impact on productivity. There were examples where a bonus could be paid to someone who simply carried out the tasks he was already being paid to do anyway.
The tribunal decided in favour of the women and that decision has now been upheld by the Employment Appeal Tribunal.
There has been a large increase in the number of successful equal pay claims brought by women in recent years, both in the private and public sector.
Anyone who feels they are not receiving the same pay levels as colleagues performing equivalent work may have grounds for a claim and should seek legal advice.
Expanding HIPs must be ready when a house is put on the market
Home Information Packs (HIPs) are to be expanded to include a property questionnaire and will have to be available soon as a house is put on the market.
From 6th April sellers will have to provide a Property Information Questionnaire (PIQ) when presenting the HIP to potential buyers. The questionnaire will cover a wide range of issues such as the property’s service charges, flood risk information, structural damage, gas and electricity safety, and parking arrangements.
It will be in addition to the other required documents such as the Energy Performance Certificate rating the property’s energy efficiency, evidence of title, the results of standard searches and the terms of sale.
The other big change taking place on 6th April is that HIPs will have to be made available to buyers as soon as the property is put on the market. This will end the temporary concession whereby sellers could request and pay for a HIP and then start marketing their property for up to 28 days before the HIP became available.
Property Information Questionnaires will also be required for leasehold properties. The other change is that the temporary leasehold information provision was made permanent on 1st January. It means that a copy of the lease remains the only extra information needed for leasehold properties.
We are happy to offer advice on HIPs and all legal aspects of buying or selling property.
Family courts get new powers to settle contact disputes
Judges in family courts have been given more powers to resolve contact disputes between estranged parents.
It means that parents who fail to honour their commitments and responsibilities could be obliged to attend parenting classes or even undertake unpaid community work.
The new measures are contained in the Children and Adoption Act 2006 and became effective on 8th December 2008. They’re intended to help resolve conflicts between parents over such things as who the child should see, how often and under what conditions.
A family court now has the power to direct a parent to undertake a contact activity, and it can attach an activity condition such as attending parenting classes to contact orders.
If one of the parents suffers financially from the other’s failure to comply with a contact order then the court will be able to award compensation. The court will also be able to impose an unpaid work requirement on the person who breaches the contact order.
The Government says the background to the changes is the principle that the “well-being and interests of the child are of paramount importance” rather than the personal interests of either parent.
We are happy to offer advice on the new measures or any aspect of family law.
Add a little will power to your New Year resolutions list
The New Year often sees us making resolutions to improve our lives and our approach to various issues.
It could be to eat a little less or exercise a little more. Unfortunately, getting our legal affairs in order doesn’t usually come high on the list of things we must do. However, that could cause huge problems in future, if not for ourselves then almost certainly for our families.
One of the biggest mistakes is failing to make a will. This can lead to both heartache and hardship for your loved ones after you die. It could even lead to unseemly squabbling among family members.
Many people assume that they don’t need a will because everything will automatically pass on to their spouse when they die. This is not the case. If you die intestate – that is, without having made a will – then your estate will divided in ways laid down by the law. Some will go to your spouse, some to your children, if you have any, and some may go to other family members. These could be people you may not even like and would not have chosen as beneficiaries yourself.
The only way to ensure your estate is divided in the way you want it to be is to make a will and ensure that is properly drawn up with the help of a solicitor.
People who already have a will should review it from time to time to ensure it still meets their needs and reflects their wishes. A Law Society spokesman stressed the need for regular reviews:
“When circumstances change, you should contact your solicitor to see if you need to review your will. When someone is in the process of a major life-changing event such as moving into a new home or getting married, often the last thing on their mind is their will. However, it should be a high priority. Do not let it gather dust.”
It’s best to resist the temptation to cut corners by using DIY will kits. These may save you a little money in the short term but they are often not properly drawn up and can lead to problems after your death.
The last few years have seen a rise in the number of people challenging wills because they feel they have not been provided for in the way they expected. This can result in conflict between family members causing lifelong rifts.
Most of these problems can be avoided if you make sure your will is properly drawn up and then kept up to date to reflect your changing circumstances.
Please contact us if you would like more information.
Man awarded nearly £3,000 after tripping on pavement
A 54-year-old man who injured his finger and grazed his face when he tripped on some cracked pavement has been awarded £2,837 compensation.
The injuries occurred when the man tripped on a section of pavement where the tarmac had become broken leaving a deviation of more than 1.5 inches. The injured man claimed the Highways Authority was negligent and had failed in its statutory duty under the Highways Act 1980 to maintain the area properly.
The authority disputed liability saying it had inspected the area as required and complied with the Act.
The man’s facial grazing healed up but he sustained a permanent minor deformity to the little finger on his right hand. He had not been able to work for a few days after the accident and then had to ask for lifts to work as he could not drive until his finger healed sufficiently.
The judge held that the authority was liable because the defects to the pavement were long-standing and so should have been rectified by the authority. By failing to carry out repairs it had failed to protect the man from a foreseeable risk of injury.
Anyone who sustains injury as a result of someone else’s negligence is entitled to claim compensation. Please contact us if you would like more information.