Category Archives: Dispute resolution

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

Thinking about an LLP?

Limited Liability Partnerships are becoming ever more commonplace so now might be a good time to look at possible pitfalls that may arise unless the LLP is founded upon an agreed basis in writing. There is no legal requirement to have a written agreement in place in a Limited Liability Partnership, as the default provisions of the 2001 LLP Regulations will apply in the absence of one, but there can be dangerous ramifications if the partners just rely on these. Here are some of the potential problems if you don’t have a written agreement in place.

Under the regulations, every partner is entitled to participate in the management of the LLP’s business as an equal, regardless of their experience or financial input into the partnership, this could lead to resentment and poor management, and so it’s probably best to create some form of decision making tree and division of responsibilities from the outset. Similarly, all partners will be entitled to an equal share in the capital and profits of the partnership regardless of how much they initially contributed, unless there’s a written agreement in place to the contrary.

General decision making regarding normal business matters are decided by a simple majority under the default provisions and changing the nature of the business would require a unanimous consent, this might lead to a level of inflexibility in a changing market so is also probably best addressed in a written agreement.

Remuneration is another possible source of contention as under the default provisions, partners have no automatic entitlement to be remunerated for their work in the LLP other than by way of profit share. This would need to be looked at in cases where some partners work in the business full time and would need paying on a regular basis.

Other contentious issues will LLPs relying on the default provisions of the 2001 regulations include the introduction of new partners into the LLP, expulsion of existing members; under the regulations, a partner can’t be expelled by a majority of the other partners unless the power to do so has been conferred by an express written agreement setting out the circumstances allowing such an expulsion; for example, if they are in material breach of the agreement, or have taken too prolonged an absence from the company.

So if you are thinking of setting up a Limited Liability Partnership, why not give us a call?

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Filed under Commercial law, Company Law, contract law, Dispute resolution, 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

Oh, The Crosses We Have To Bear…

With the state of world affairs today, religious fanaticism, radicalisation and hatred is a topic that can spill over into the workplace, especially into the controversial area of religious symbolism. In fact two recent cases adjudged by the European Court of Justice may have muddied the legal waters somewhat.

The ruling that gained most publicity states that banning all religious, political or philosophical symbols in the workplace isn’t direct discrimination, although specifically banning symbols from just one religion would be. This was further complicated as it also stated that, “banning religious symbols would be indirect discrimination if it had a disproportionate effect on a particular religion or belief”.

Ultimately the European Court of Justice left national courts to determine if discrimination had or had not occurred in individual cases. Unfortunately, this ruling clashed with a previous ruling by the European Court of Human Rights which ruled in 2013 that, “manifesting a religious belief is a fundamental right, partly because a healthy democratic society must tolerate pluralism. The court accepted that an employer’s wish to project a certain corporate image was also legitimate, but in that particular case, the court held that the individual’s religious freedom had been unlawfully restricted.”

Religious symbolism therefore remains a legal minefield; especially should a customer wish not to be served by a member of a particular religious affiliation. Indirect discrimination is not necessarily unlawful if it can be justified in respect of a legitimate aim, such as an employer’s desire to project an image of neutrality toward its customers, which is a legitimate aim.

Ultimately make sure you apply the same rule to all religious or philosophical viewpoints and make sure it can be justified by having previously implemented a policy of religious neutrality, before you consider banning all religious symbols in your workplace.  Even then, it is probably safer just to not ban religious symbols. If you need any advice on this or any other legal matter, give us a call.

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Filed under Dispute resolution, Duty of care, Employment Law, EU Law, HR Issues, UK Law

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

Article 50 is here.

Well article 50 has been effectively triggered today. Since the referendum there has been a period of uncertainty, but the latest analysis of possible effects on businesses and the probable changes to the law can be better understood.

One of the major issues that will need to be addressed will be all the EU registered trademarks, designs and the protected food and drink designations. Currently we have a national system which closely mirrors the EU regime, but after Brexit, the EU Trade Mark and the Community Registered Design legislation will no longer apply in the UK. Also protected names such as “Stilton” cheese will no longer apply to UK products so we may see in the future, French “Stiltons” or “Melton Mowbray Pies” and UK “Champagnes” and “Parma hams”.

Although the government has stated it will transpose much of EU law into UK law (The Great Repeal Act), this is not a simple as it sounds, there are many, many, alterations needed for the Laws to continue to make sense in the UK only and it remains unclear what will happen to current EU Trade Marks and Community Registered Designs. In any event, it’s possible that the UK Intellectual Property Office could be inundated with new and renewed registrations.

Data protection is another area of concern; currently the UK is committed to implementing the General Data Protection Regulation, but this may not be enough to prevent future problems with the EU as there may be legal challenges within the EU to recognise non-EU country’s data laws. On possible solution would be to have individuals either specifically give their informed consent to transfer their data or add clauses to contract that may involve data transfer.

Regulated industries are also likely to be affected; currently London houses the headquarters of the EU pharmaceuticals and veterinary products regulator, the European Medicines Agency, but this must change post Brexit which might mean delays to the clinical testing or marketing of new products in the UK. This might also apply in other heavily regulated sectors like the motor and aviation industries.

Businesses will encounter difficulties in many areas planning for the future with the legal outlook so uncertain. Although this brief overview doesn’t cover the thorny subjects of immigration restrictions and trade barriers, business needs certainty, which will only happen as the negotiations begin in earnest and the Government’s approach to tidying up the legal mess that Brexit involves becomes clearer.

What is certain is that if you are planning to enter into, or have existing long term agreements with partners in the EU you may need to consider the implications for those agreements. Some changes can sensibly be made now to deal with a post-Brexit world, so why not give us a call.

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Filed under Commercial law, Company Law, Copyright Law, Dispute resolution, Ecommerce, EU Law, Intellectual Property, Law and Technology, Legal news, UK Law