Category Archives: Arbitration

Property disputes; what’s that all about?

Whereas businesses can encounter all sorts of legal issues and disputes in their day to day operations, one area that seldom gets mentioned is that of “property disputes” specifically disagreements about working premises and where a company conducts their business.

So what happens during a business property dispute and what to expect?

There are several types of property dispute that can arise, such as disagreements between a landlord and tenant over subjects such as tenancy agreements or rent; then there can be issues involving the lease itself regarding disagreements on how the property can be used and for what purposes, or even the right to use your property as the location for your company. Then we can encounter boundary disputes; if another company or landlord claims some of your land or encroaches on your property. Then there are potential arguments over construction and planning, especially if you want to expand and face opposition from other residents or local groups. There can even be disputes when buying or selling land for your company.

If any of the above scenarios occur, in general you should be prepared to deal with varying periods of negotiation and or litigation, depending on the type of dispute.  In boundary disputes, for example, you will need a good legal team to find a satisfactory resolution through the courts; to present your evidence and put your argument forward.  Then, after both sides have made their case, a presiding judge will rule in favour of one party or the other. In planning issues, you will have to submit detailed plans to the council and explain what you intend to do, and then there will be private and public consultations before any work can commence.

All this can take up a lot of time and money so it’s always good practice to get the best legal advice from the outset to minimise your risk; why not give us a call?

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Filed under Arbitration, Construction, contract law, Dispute resolution, Planning Law, Property Development, UK Law

Worker-Employee, what’s the difference?

Good question, you may say, since October 2016 the government has been carrying out an enquiry into whether the terms “Employee” and “Worker” are properly defined legally. Currently there are three possible categories; “employee”, “worker” and “self-employed/freelance”

“Workers” are entitled to certain employment rights, including, getting the National Minimum Wage protection against unlawful deductions from wages, the statutory minimum level of paid holiday, the statutory minimum length of rest breaks,  to not work more than 48 hours on average per week or to opt out of this right if they choose, protection against unlawful discrimination, protection for ‘Whistleblowing’  and to not be treated less favourably if they work part-time.

“Employees” have all the rights workers have plus the following; Statutory Sick Pay, statutory maternity, paternity, adoption and shared parental leave and pay (workers only get pay, not leave) minimum notice periods if their employment will be ending, protection against unfair dismissal the right to request flexible working , time off for emergencies and Statutory Redundancy Pay.

“Freelance or casual”, have none of the above rights as they are deemed to be “self-employed” and are only covered for general statutory duty of care, for their health and safety and, in some cases, protection against discrimination. Any rights and responsibilities are set out by the terms of whatever contract they can negotiate with their client.

Evidence put before the enquiry, however, suggests that two categories would improve the situation, “employed” and “unemployed”. “Employed” would mean that all workers have the same rights as employees to make things as simple as possible for businesses since tribunal and court judgments so far have not always managed to explain the differences clearly. This often creates situations where businesses look to minimise their legal obligations by trying to structure their relationships slotting people into the least burdensome category, like in the recent Uber case; what might start out as a clear self-employment relationship, in practice can turn into something quite different once the law gets involved.

We’ll have to wait and see what comes of all this but meanwhile if you need any help or advice on this or any other legal topic, give us a call.

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Filed under Arbitration, contract law, Dispute resolution, Employment Law, HR Issues, Mediation, UK Law, Unfair Dismissal, Whistelblowing, Zero hours

Some Other Substantial Reason?

This is an interesting legal topic that rarely gets a mention. Most employers, employees and HR professionals are well aware of the main grounds for which an employee can be dismissed; gross misconduct, continuing misconduct after a final written warning, etc. But there is also a “catch all” legitimate ground for dismissal for “some other substantial reason”, or SOSR for short.

In order to dismiss an employee fairly an employer has to have a fair reason and follow a fair procedure, but if for example, an employer is struggling with a “problem employee” whose behaviour is affecting the morale of other staff, the employer cannot fairly dismiss the employee because of his conduct, as the issue is not the conduct itself, but how their conduct affects other members of  staff. Nor do the other fair reasons for dismissal; capability, redundancy or breach of statutory restriction apply in this situation.

Instead SOSR can sometimes be used in the following situations where the employee:

  • Causes significant business disruption because of personality clashes with others
  • Refuses to accept any changes to their employment contract
  • Is likely to divulge confidential business information
  • Can no longer be trusted
  • Causes important customers or other third parties to call for their dismissal.

Despite the above, it is important however, to follow the correct disciplinary procedure at all times regardless of the situation; the employee must have adequate warning, a chance to appeal and any concerns or issues the employee might have that caused his behaviour should be addressed well before any attitudes harden on both sides and dismissal is contemplated.

It is also important to ensure you follow the ACAS code of practice to the letter, because even if the employee contributes towards his dismissal as a result of his behaviour, employers who fail to follow the ACAS code of practice risk incurring financial penalties as well as the dismissal being deemed unfair because the correct procedures were not followed.

As always, if you need any help or advice in this or any other legal matter, why not give is a call?

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Filed under Arbitration, Dispute resolution, Duty of care, Employment Law, HR Issues, Mediation, UK Law, Unfair Dismissal

Latest changes in the Legal System

The various specialist civil courts in England and Wales will be reorganised and be officially known as the “Business and Property Courts of England and Wales” from June 2017. They will handle, amongst other matters, international dispute resolution jurisdictions. The courts included within the Business and Property Courts will be as follows:

  • The Commercial Court which will continue to cover all its existing subject areas of shipping, sale of goods, insurance and reinsurance etc.
  • The Admiralty Court.
  • The Mercantile Court.
  • The Technology and Construction Court which deals with major technology and construction cases.
  • The Financial List which deals with all banking and financial market issues.
  • The Companies and Insolvency Court.
  • The Patents Court.
  • The Intellectual Property and Enterprise Court.
  • The Competition List.

The new structure will provide more flexibility while preserving the practices and procedures of these courts. Judges with suitable expertise and experience will be able to cross-deploy so as to be able to sit on cases where their expertise can be best utilised. The current situation means that judges who are experts in a particular legal field are not readily available to sit in cases in that area in another court, so, highly expert competition law judges in the Queen’s Bench Division cannot easily sit on the bulk of competition law cases that take place in the Chancery Division.

The overall intention is to enhance the U.K.’s reputation for international dispute resolution and to ensure that the U.K. continues to provide the best business court-based dispute resolution service in the post Brexit world. Business and Property Courts will be set up in Birmingham, Bristol, Cardiff, Leeds and Manchester, initially with planned future courts in Newcastle and Liverpool and these courts will enhance the connections between Business and Property work carried out both outside and within London.

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Filed under Arbitration, Commercial law, Company Law, Competition Law, Construction, contract law, Copyright Law, Dispute resolution, EU Law, Intellectual Property, Legal news, UK Law

But I don’t want to go!!

One legal issue that rarely gets mentioned is what happens if a company decides to re-locate. Many contracts of employment include mobility clauses which effectively force employees to move, leave or face dismissal. While these clauses are perfectly legal, should an employee choose to leave as a result of the move it may not just be a simple case of dismissal or dealing with a resignation, and if an employee flatly refuses to move, you may have to acknowledge they’re redundant and pay redundancy or you may find yourself at the wrong end of an unfair dismissal claim.

In a recent case, a company decided to close one of their two sites and move the workforce to the remaining site. The company did make arrangements to make redundancy payments for “exceptional circumstances” to some staff who were elderly or had specific problems which made the move impossible, but during this process, two employees were told to move under their mobility clauses and when they refused to relocate, were dismissed.

The Employment Appeal Tribunal heard that although there was a redundancy situation, the actual reason given for dismissal was “misconduct”; but since the company thought that it could rely on mobility clauses to avoid paying out redundancy payments the Employment Appeal Tribunal found that the actual reason for the dismissals was the employees’ refusal to relocate. The Employment Appeal Tribunal also found that the instruction to relocate to offices on the other side of London to be unreasonable, even with the mobility clauses, so that made the decision to dismiss unfair.

Although these types of cases are always adjudged based on the specific circumstances involved, it pays to consider the company’s options. They demanded that their employees relocate without considering the possible legal ramifications, and had they acknowledged their positions would have been redundant and they could probably have been made redundant fairly which would have resulted in redundancy payments far less than the cost of the legal action and subsequent compensation paid. So if you are planning to relocate or downsize, why not give us a call.

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Filed under Arbitration, Employment Law, HR Issues, Legal news, UK Law, Unfair Dismissal

Dismissing Company Directors

In most cases “boardroom battles” sort themselves out without any need for a recourse to law but there can be instances when a company director must be dismissed and this can be a complex process as a Director is not a normal employee.

Director’s of companies, from SMEs upwards, usually have up to three functions; a Director, an Employee and a Shareholder and in order to dismiss, they must be removed from each role.

The removal of a Director often depends on what is in the company’s Articles; if the Articles empower a Board to dismiss a director, and the majority of directors agree that the individual should go, then this can be decided at a board meeting. If not, the Companies Act gives this power to the Shareholders. Shareholders with more than 50% of the voting power can resolve to remove a director, but there is a special procedure to follow with complicated notice provisions so make sure you check the provisions in the Companies Act first.

As a Director can also be an employee, the company can dismiss a Director in the same way as it can dismiss any other employee. However a majority of the members of the Board must still vote for the director’s employment to end at a board meeting. If a director’s employment is terminated, there is always the risk that they could take the company to an employment tribunal but many companies think this is a risk worth taking.

Lastly you need to consider whether the Director is also a shareholder; check the shareholder’s agreement or the Company Articles for a clause that states that if a director ceases to be a director, they must automatically surrender their shares and how these shares are valued at that moment. If there’s no such clause then the director cannot be removed as a shareholder and alternative arrangements will need to be considered, such as buying back the shares.

Ultimately regardless of the situation it’s always best to try to resolve the matter with the director in question. If you have the power, explain to them that you can go through the above procedures to remove them and given that they cannot prevent it, it may be better for them to negotiate an exit. If you don’t have the power but feel you cannot work with them, then negotiation is still an option; you may still be able to agree an exit.

As always if you need help and advice, give us a call.

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Filed under Arbitration, Commercial law, Company Law, Dispute resolution, Employment Law, HR Issues, Unfair Dismissal

Under Pressure?

With the current rash of political resignations and leadership infighting many of us might be forgiven for wondering whether pressure could be brought on employers to dismiss employees in response to a demand by a third party? If you as an employer are asked, or ordered to dismiss one of your employees by an important client or supplier, what would or could you do? Case law has demonstrated that an employer does not necessarily need to establish culpability by the employee. Whatever you decide, it is vital to adopt a rigorously fair procedure because of not only the potential injustice to the employee but also the possibility of an unfair dismissal claim.

You’ll need to consider whether the third party is acting reasonably and has good grounds to take such a step; but the overriding factor is how serious is the risk to your business if you don’t bow to the dismissal demand? Will the major client seriously take their business elsewhere? If these threats are taken seriously, then this can form the basis of a fair and lawful dismissal.

You will need to provide good evidence to demonstrate that you really were under serious pressure to dismiss the employee and that you acted reasonably under the circumstances. Third party pressure, no matter how serious, is not enough to justify dismissal unless the employers can demonstrate they took all reasonable steps to avoid, or mitigate it, including considering moving the employee to another department or account.

Accordingly you should investigate the matter with the client to establish the basis of their objection to the employee’s continued employment and challenge their stance if need be. Be aware that a Tribunal may well ask whether the employer ought reasonably to have taken steps sooner to prevent matters coming to a head.

It doesn’t have to be a major client; pressure to dismiss can come from within the organisation, from the employee’s colleagues.  Working relationships can break down due to conflicting beliefs or characteristics protected under discrimination law, or result in the threat of industrial action unless a particular employee is dismissed.

What is certain , however is that employers should have clear policies and procedures in such situations that will help to mitigate any fall out or defend against any subsequent legal action. As always if you are affected and need advice, give us a call.

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Filed under Arbitration, Dispute resolution, Employment Law, HR Issues, Mediation, Unfair Dismissal