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ACAS Early Conciliation - from 6th April 2014 anyone wishing to take employment tribunal action must first contact the Advisory, Conciliation and Arbitration Service (ACAS) and consider conciliation. 

Prior to issuing proceedings in an employment tribunal a claimant will be obliged to provide ACAS with prescribed information either by submitting an EC Form or by telephoning ACAS. 

If contact is not made then ACAS will not submit an early conciliation certificate and the claimant will not be able to commence proceedings in the tribunal. The conciliation period is one month. This period can be extended for up to 14 days by agreement. The standard 3 month minus one day time limit for bringing claims will be suspended from the date of receipt of a correctly completed EC form. The time limit for bringing a claim will begin to rung again one day after the EC certificate is deemed to have been received. 

Claimants will need to check a very careful eye on the time to bring a claim. Employers will have earlier knowledge of potential claims thus providing an opportunity for a "commercial" settlement.


Custom & Practice - Redundancy payments - the custom and practice of an employer can insert unwritten implied terms into a contract of employment. In the recent case of Peacock Stores v Peregrine an employer routinely paid staff in accordance with the statutory redundancy scheme albeit the current cap of £450 gross pay per year of service did not apply.

The Claimant had the burden of proof to establish that there was a contractual entitlement to the uncapped payments. A former head of HR confirmed that the uncapped method of calculation was "most definitely custom and practice". The practice was consistently applied for a significant period of time. There was no evidence to the contrary. Therefore, failure to pay the uncapped payments represented a breach of contract. 

Employers should be very careful not to fall into this trap. Any redundancy policy should clearly confirm the method of calculation. This should not be deviated from unless there is good reason and it is clear that the employer is exercising its non-contractual discretion. In this scenario, a settlement agreement may be appropriate. If in doubt seek legal advice before it becomes an issue.


We are delighted to announce that Carrie Meikle has joined our Conveyancing team.  Carrie will be based at our Devonport office.


Discrimination Questionnaires to be abolished on 06/04/14. The discrimination questionnaire procedure provided a useful weapon for a claimant prior to issue of a claim in the Employment Tribunal to obtain useful evidence to assist his or her case. Failure to answer questions could result in an adverse inference being drawn. However, on 6th April of this year the procedure will be abolished and, as a result, the usefulness of the procedure much diminished. The tribunal will still be able to look at whether and how questions have been answered as a contributory factor in making a decision by an employer in a discrimination claim.


Jobcentre Plus v Jamil - Reasonable Adjustments and Time Limits - a claim needs to be brought within 3 months minus one day of the refusal to make a reasonable adjustment. However, in this case, the discriminatory act in respect of a disabled employee extended over a period of time as it related to a "continuing state of affairs". Therefore, the duty to make reasonable adjustments due to the disability had to be fulfilled on a daily basis not just from the date of refusal. The adjustment related to a transfer of workplace nearer to home. If in doubt seek legal advice.


Open the floodgates - employment issues arising from the recent floods & severe weather -

Normally absence in severe weather conditions is considered to be an unauthorised absence. However, employers need to tread very carefully.

Should you paid for an employee's absence due to the weather? No, unless you decide to pay the employee or his/her contract provides for a payment to be made. 

Can I dismiss or discipline an absent employee due to weather conditions? It will depend on the circumstances of the absence. However, if an employee is trying to prevent their homes from being flooded a dismissal or disciplinary sanction is likely to be unfair. Was their absence genuinely caused by the weather? Was it reasonable for them not to attend work? How long did the period of absence last? What was the effect on the business? 

Even if a business is incapacitated by the weather you will still need to pay your employees. If your contracts of employment allow for lay off then you may be able to tell employees to stay away from work without pay (statutory guarantee payments will still apply). In the absence of a lay-off clause such action would be a breach of contract leading to unfair constructive dismissal and unlawful deduction from wages claims. 

You could ask your employees to take their annual leave, however you would need to take into account the minimum notice period required under the law to require them to take the legal. Also, there may be issues as to breaching "mutual trust and confidence" which in turn to lead to an unfair constructive dismissal claim. 

In summary, you should examine your contractual documentation to see what processes are in place to ensure that you are well prepared to deal with such an emergency. If in doubt seek legal advice.


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But taking Legal Action can be Expensive

There are various ways of funding your case. You may already have legal expenses cover through your household or motor insurers and this may meet the cost of pursuing your claim. Alternatively if you are a member of a Trade Union they may be prepared to fund your case.

If you do not have any of the above you can pay the legal costs yourself as the case progresses. However most of our clients prefer to fund the case by way of a Conditional Fee Agreement, often known as a "no win no fee" agreement.


No Win, No Fee

We can look at dealing with your personal injury cases under a Conditional Fee Agreement. This means that if you win your case you must pay our costs but you should be able to get the majority of your costs paid by your opponents. If you lose, you pay nothing.

We recommend that the agreement is backed by insurance and our Personal Injury Specialist will discuss this with you in more detail during your first appointment.


What next?

We would be pleased to discuss any possible claim with you. If your claim has a reasonable chance of success we will be happy to represent you and we will guide you through the whole process.

We have offices in Devonport, Plymstock and Ivybridge and we are happy to see you at the office which is most convenient to you.

In the event that you cannot travel to one of our offices due to your injuries we may be able to visit you at home.


Is there anything I need to worry about before putting my business premises on the market?

Yes, unfortunately there are quite a few things you need to consider before placing your business on the open market if you hope to achieve a successful sale. Some requirements, like the Energy Performance Certificate, are needed before any businesses premises can even be marketed. But there are other matters, which most small business owners do not discover until the transaction is all ready underway, leading to unfortunate and avoidable delays. For example:

a. Apportionments – How are you going to apportion the sale e.g. between Goodwill, Property and Fixtures and Fittings? This should be considered carefully as the apportionment will have Tax consequences.

b. Asbestos Survey – this is a legal requirement under the Control of Asbestos at Work Regulations 2002. A lot of small businesses owners are unaware of the obligation until a potential buyer’s solicitors ask to see the report.

c. Fire Risk Assessment – this is also a legal obligation that some business owners are not aware of until it threatens to slow down a transaction.

Even when a buyer has been found there are certain matters which should be considered right at the start of the transaction to prevent delay. For example:

Planning Permission – what if your potential buyer intends to change the use of the premises? It can take at least eight weeks to obtain planning consent for change of use, and in a buyer’s market this is as much of a concern for the seller as it is for the buyer and could result in the transaction falling through. These matters should be discussed right at the start of a transaction. 


I’m entering into a new lease of business premises, what are the things I need to look out for?

There are lots of important aspects to a business lease that may not come to light until some years after the transaction has completed, and when the consequences could have a severe impact on your business, some of these are as follows:

a. Rent – you need to check if VAT is included or excluded, the frequency and type of rent reviews. Is there any rent-free period? Is a rent deposit required?

b. Term – is it suitable for your business needs? If it is too short, you may find you’re forced to look for new business premises. If you have just started a new business venture, you may not be ready to tie yourself to a long-term liability.

c. Break Clauses – who is the break clause in favour of? It may be in favour of the Landlord and what appeared to be a ten-year term could be terminated after only three years.

d. Assignment – Can you assign the lease, and if so are there any conditions? e.g. Do you need to sign a personal guarantee? Do you need the Landlord’s consent?

e. Repairing/Insuring – who is responsible and how extensive are the obligations? You do not want to find yourselves entering into a lease of a premises which is in a poor state of repair, to find yourself with the inconvenience and expense of extensive remedial work because of your repairing obligations or a failure to agree a Schedule of Condition.

Note: This analysis may contain information of general interest about current legal issues, but does not give legal advice.

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