Last orders: pub chef’s constructive dismissal claim fails

Courtside: the latest legal news from MyLawyer

Mr Assamoi, head chef at pub The Paxton Head until 2010, has lost a claim of constructive dismissal filed against former employer the Spirit Pub Company.

The chef claimed that his manager’s spurious and malicious disciplinary actions breached their mutual trust and forced him to resign, but the Employment Appeal Tribunal ruled against him.

Mr Assamoi’s manager, Mr Cooper, took over The Paxton Head in 2009 and, as part of a series of mergers, offered Mr Assamoi a new contract. He refused to sign it, claiming he would be made to work fewer hours – and thus be paid less – if he did. Continue reading “Last orders: pub chef’s constructive dismissal claim fails”

Is your business protected against social media harassment claims?

One of the few blights on London’s otherwise glorious Olympic fortnight was the online vitriol directed at several underperforming athletes, most notably the malicious Tweet to diver Tom Daley involving his late father, which led to an arrest.

Social media networks like Twitter, Facebook, Google+, Bebo, LinkedIn, Flickr and Pinterest have revolutionised our ability to communicate, both socially and in business, but it has also widened the net in terms of potential harassment suits.

As an employer, you may well have a strong system in place for dealing with harassment in the workplace, including verbal abuse and other forms of inappropriate behaviour between colleagues, but it’s becoming increasingly vital to extend that to online behaviour, including online activity outside of working hours.

In 2006, the House of Lords ruled on a harassment case, Majrowski vs Guy’s at St Thomas’ NHS Trust, in favour of an employee, William Majrowski, who claimed that his supervisor was rude and abusive to him and that the abuse was fuelled by homophobia. Despite the employer not having knowledge of the situation – and therefore not being able to deal with or prevent it – the House of Lords ruled that they were ‘vicariously liable’.

This means that if an employee harasses another in a way that the employer doesn’t have knowledge of, such as online and outside working hours, the employer is still potentially liable for a harassment suit.

What should you do?

It’s extremely difficult to control how employees interact with one another via social media. As an employer, the best way to protect yourself is to implement a clear, detailed policy on the use of social media where it involves you, your business and/or other employees, both within and outside of the workplace.

You should update your employee documents, such as handbooks and contracts, to reflect this policy, so that if a harassment situation arises, you can show that you’ve communicated your policy and the employee is in breach of it, making them liable for their actions rather than you.

We offer several documents that can help you, including our ‘Discipline and dismissal pack’, ‘Employee handbook’ and ‘Contract of employment’. You should update documents like these regularly in line with changing business practices and laws.

If you have any further questions, contact our team of experts.

Inheritance Tax: what is it and do I need to pay it?

According to a recent survey by Baring Asset Management, 17% of Britons are relying on inheritance to help fund their retirement, with just 44% believing that pensions alone are sufficient to get by.

That figure rises for people in the A/B social segment (upper and middle classes), with nearly one in four saying inherited assets form a key part of their retirement planning, up from 20% in 2011.

However, if you’re relying on inherited funds or assets, or if you’re planning to help out relatives, dependents or friends by leaving them something in your Will, there is one barrier to overcome: Inheritance Tax.

What is Inheritance Tax?
It’s a 40% tax on the value of your estate – property, assets, money etc., minus liabilities – when you die. Unless you plan ahead, it can severely deplete the amount you leave to people.

However, if you’re aware of the rules and exemptions of Inheritance Tax when you’re making your Will and managing your assets, you can limit the amount you pay out; in fact, if you’re very canny, you can leave almost everything to dependents without them having to share with the taxman.

How can I avoid paying the full amount?
There are ways to leave assets to people without paying Inheritance Tax or by paying a reduced sum. These include:
•    Gifts to partners If you ‘gift’ an asset to your spouse or registered civil partner, it’s tax free, unless they live outside the UK (if that’s the case, you’ll need to seek professional advice).
•    Donations Anything you gift to a qualifying charity or UK national body (like a political party) is tax free. To check whether an organisation qualifies for this, call the HMRC helpline on 0845 30 20 900.
•    Allowance You can give away assets up to a certain amount without paying tax – this is known as your ‘tax-free allowance’. The current allowed value, called the ‘nil band rate’, is £325,000; it’s reviewed each year, so check the HMRC website for the latest figure. The allowance is calculated AFTER you’ve given gifts and donations and after certain things have been deducted, such as burial expenses and mortgages. Note that if you ‘gift’ something during the seven years before you die that reduces the value of your estate (e.g. if you transfer money to someone), it can affect the amount of your tax-free allowance after your death.

Are there any exemptions?
There are certain ‘allowable exemptions’ to be aware of when you’re gifting assets – this gives you other ways to leave things to people without paying Inheritance Tax on them. They include:
•    Small gifts Anything worth £250 or less in any one tax year given on a ‘festive’ occasion, like a birthday or Christmas.
•    Annual exemption Anything you give worth £3,000 or less in any one tax year – either one gift or several small ones not covered by the ‘small gifts’ exemption. If you give gifts worth less than £3,000, you can carry over the surplus to the next year (but no further).
•    Made out of income Gifts you give that are part of your normal expenditure – i.e. gifts you would usually give, paid for by your income and leaving you more than enough in your bank account to maintain your usual standard of living. Again, these can’t exceed £3,000.
•    Marriage/civil partnership Gifts you give to one or both of the happy couple on or shortly before their big day are exempt up to a certain point; that varies depending on your relationship with them, so check the HMRC website or talk to an expert.

Where there’s a Will, there’s a way
The best way to navigate the tricky Inheritance Tax waters is through an effective Will – visit our ‘Wills and probate centre’ to find out more.

This will also give you a chance to think about how you’re organising your estate, for example which assets you want to be covered by certain tax exemptions, if you need to co-ordinate with your partner on bequests and if you want to place some of your assets into a trust.

The sooner you start this process, the better, and you should update your Will regularly, particularly if you have any big changes in your life, such as buying or selling a property.

If you have any further questions, contact our team.

Double jeopardy: Baby P social workers protest second disciplinary action for same offence

Courtside: The latest legal news from MyLawyer

An Employment Appeals Tribunal rejected social workers Gillie Christou and Maria Ward’s claim of unfair dismissal after they were disciplined twice by Haringey Council for the same offence – their failings in the care of 17-month-old Peter Connelly, who died in 2007.

Ms Ward, the social worker responsible for Baby P’s care, and Ms Christou, her supervisor, were initially put through the council’s Simplified Disciplinary Procedure and received the maximum penalty of a written warning.

However, following extensive media coverage and public outcry, the council recruited a new management team who questioned the adequacy of that process and believed new disciplinary proceedings were needed, based on the same facts. The second round of proceedings resulted in Ms Ward and Ms Christou’s dismissal.

The pair questioned the decision on the basis that they’d already received a sanction in the form of a written warning, therefore the council was dismissing them for a offence for which they’d already been punished.

However, the tribunal ruled that the council was entitled to launch secondary disciplinary proceedings given that the written warning didn’t reflect the seriousness of the situation, and that although it’s uncommon for a second process to take place based on the same facts, this was ‘exceptional’ given the high-profile media coverage.

How MyLawyer can help you
The context of this particular case is unusual. As a rule, employers should only take the decision to re-discipline employees for the same misconduct in certain circumstances. If you do feel you wish to do so, obtain legal advice before proceeding.

We have a range of letters to assist you when pursuing disciplinary action against an employee, including letters of suspension pending an investigation, inviting an employee to a disciplinary hearing, advising of the outcome and notifying dismissal for gross misconduct. Check out our Employment Law Centre to find out more.

If you need any further advice, contact our team.

The danger of firing an employee with a PILON clause

Courtside: The latest legal news from MyLawyer

Dismissing an employee by invoking the ‘payment in lieu of notice’ (PILON) clause gives you a clean break, but could be costly down the line, as a recent case proves.

Shooting suppliers William Evans Ltd made managing director Duncan Cavenagh redundant in a letter exercising the PILON clause, agreeing to pay him six months’ notice, but they later discovered he’d committed an act of gross misconduct by transferring £10,000 of company money into his pension.

The company refused to pay his pension as a result of this discovery and Mr Cavenagh issued a High Court claim for the PILON payment of £65,000, along with other claims regarding his pension.

William Evans argued that he wasn’t entitled to the PILON payment because of his prior gross misconduct. However, the High Court ruled in favour of Mr Cavenagh because William Evans had chosen to use the PILON contractual provision when dismissing him, therefore they’d incurred a debt and his prior misconduct was irrelevant.

How MyLawyer can help you
This case has some key points for employers. You can still use a PILON clause if you want an employee to leave immediately without working their notice and this will mean you can enforce any restrictive covenants in their contract if you need to.

However, you should consider the following:

•    Make sure the PILON clause is discretionary, so you do have the option to use it
•    Investigate the employee’s conduct first – you might discover grounds for summary dismissal instead
•    Consider offering the employee a small sum of money in addition to their contractual entitlement. This means you can then ‘claw back’ the PILON payment if you do discover a prior act of gross misconduct

You can also try to recover the payments through court proceedings, although as the William Evans case shows, this isn’t a sure bet.

Most importantly, make sure your employment contracts are up-to-date and that they cover all eventualities. Check out our Employment Law Centre to find out more or contact our team if you have any further queries.

Unsuccessful job applicant demands information on successful candidate to prove discrimination

Courtside: The latest legal news from MyLawyer

A Russian national took German company Speech Design Carrier Systems GmbH to the Court of Justice of the European Union in a bid to prove she was discriminated against.

Galina Meister twice applied for the role of software developer, but, although she was qualified for the position, she was rejected without an interview or feedback on her application.

Ms Meister issued claims alleging sex, age and ethnic origin discrimination and demanded access to the company’s file on the successful candidate to prove she was more qualified for the job.

The court found that Ms Meister had no right to force the company to provide details on the successful candidate or why they were hired. However, the company’s refusal to disclose such information could be taken into consideration by a court when deciding if there was a presumed case of discrimination.

How MyLawyer can help you

Although this was a German case, the court ruled according to an EU Directive that also applies to the UK, and in a British discrimination case, an Employment Tribunal will often order documents like those Ms Meister requested to be disclosed by an employer. If that happens, you should block out any personal information in order to protect your employee’s confidentiality.

To avoid any risk of such a claim, visit our Employment Law Centre and check-out our ‘Staff recruitment pack‘ which contains a range of best practice documents for use when interviewing and employing new staff.

Health and Safety Executive fines pub landlords over £5,000

Courtside: The latest legal news from MyLawyer

The managers of a Lancashire pub have been successfully prosecuted by the Health and Safety Executive (HSE) after failing to purchase Employers’ Liability Compulsory Insurance (ELCI).

Stephen and Karen Martin, who used to run the Hinds Head pub in Charnock Richard, Chorley, employed several members of staff, but did not buy insurance and thus had no means of paying employees compensation should they suffer from a work-related illness or accident.

Despite receiving several warnings from HSE inspectors between September 2010 and February 2011, the couple failed to purchase ELCI, which is a strict legal requirement.

South Ribble Magistrates’ Court found them guilty of three breaches of section 1(1) of the Employers’ Liability (Compulsory Insurance) Act 1969. They were fined £1,200 each and ordered to pay the HSE’s prosecution costs of £2,620.

HSE investigating inspector Shellie Bee said: ‘This insurance is a legal requirement and not an optional extra. Because Stephen and Karen Martin cut corners to save money, they were putting their employees in a position where they could have potentially suffered a life changing illness or injury at work and had no recourse to any kind of compensation.

‘Despite being given ample opportunity to correct this problem over a period of months, they chose to ignore the advice they were given by HSE, so we had no choice but to prosecute.’

How MyLawyer can help you

Check out our ‘Health & safety compliance review and policy creator‘ to make sure you have every eventuality covered.

If you have any further questions, contact our customer services team.

UK sees big rise in civil partnerships … and dissolutions

The number of civil partnerships in the UK has risen 6.4% since 2010 and the number of dissolutions has gone up 28.7%, according to the Office of National Statistics.

There were 6,795 civil partnerships in 2011 and 672 dissolutions in 2011, a marked increase from the previous year. The number of civil unions was evenly split between the sexes, with the men just coming out on top with 50.7%, compared with 51.2% of the unions being female in 2011. The majority of the dissolutions in 2011 were female, with 64.6%.

There have been 106,834 civil partnerships since 2005, far exceeding the Government’s 2004 estimate suggesting there would be somewhere between 11,000 and 22,000 in the UK by 2010.

Before you tie the knot

If you make the decision to enter into a civil partnership, make sure you prepare for all eventualities with a pre-civil partnership agreement. This lets you decide:

•    What will happen to your assets if your union comes to an end, such as shared belongings and financial holdings
•    Who has ownership of property if you separate, either property owned by one of you at the start of the relationship or property you acquire jointly

Getting such agreements down in writing at this stage could help ease the stress and pain of separation and it ensures you’re protected, no matter what happens.

If things don’t work out …

If, sadly your civil partnership does break down, you can apply to the courts to bring your civil partnership to end. To make the process as quick and easy as possible, a ‘Dissolution for civil partners pack’ is available from MyLawyer, which includes the documents needed to start and complete the dissolution process, including a ‘Dissolution/separation petition’, a ‘Statement of arrangements for children’, ‘Statement in support of dissolution’ and ‘Notice of application for conditional order to be made final’.

If you have any questions, get in touch with our experts.

Make sure your Will is above suspicion

Courtside: The latest legal news from MyLawyer

In a recent High Court case, two Wills an individual prepared on behalf of his sisters were challenged on the grounds of ‘want of knowledge and approval’, meaning the court had doubts that the sisters definitely knew about and fully approved the contents of the Wills.

A court can make this challenge if it deems any of the circumstances surrounding you making your Will suspicious in any way – for example, if there’s evidence that you didn’t understand some of the contents or you weren’t in a fit state to make the Will.

To ensure your Will is valid and your wishes are carried out, avoid any of the following suspicious behaviour:

•    Unprofessional The Will looks homemade and there’s no evidence of you seeking professional advice.
•    Language Either the Will contains errors, such as spelling mistakes, that make the court question its validity, or it contains language you most likely didn’t understand and there’s no evidence you approved those elements.
•    Untrue The Will contains factually inaccurate statements that should have been corrected, or there are decisions, without explanation, that seem highly out of character for you.
•    Big changes It has major changes in it, for example deciding to cut your partner out of your Will, again without rational explanation.
•    Strangers The major beneficiaries – people you’re leaving money or other big assets to – are strangers, and you haven’t clarified that choice with anyone.
•    Witnesses Your witnesses aren’t sufficiently independent – for example, you’ve left money to them or they benefit in some way from your decisions.
•    Beneficiary There’s evidence that a person(s) who gains from your Will has acted dishonestly or against your wishes in some way.
•    Behaviour At the time you made your Will, your behaviour was particularly unusual – such as high levels of stress or irrationality – again without any valid explanation.
•    Capacity There’s evidence that you weren’t at the necessary mental capacity when you made the Will, for example through illness.

If a court has reason to doubt your Will, your wishes could be challenged and even overturned in what can become a very lengthy, expensive and difficult process for your beneficiaries.

Get peace of mind by visiting our ‘Wills and probate centre’ and beginning or updating your Will now, tailored to your individual circumstances. Our solicitors can guide you through the process and ensure your Will is incontestable.

If you have any further queries, do get in touch.