Emerald Law Solicitors | Liverpool Law

EAT upholds re-engagement order following TUPE-related unfair dismissal

admin — Fri, 07 Sep 2012 16:02:08 +0000

The Employment Appeal Tribunal has upheld a tribunal’s finding that two employees, who were dismissed for failing to agree to new terms (including a pay cut) following a TUPE transfer, were unfairly dismissed. Although the reason for dismissal was an economic, technical or organisational reason, it did not entail changes in the workforce. The EAT also upheld the tribunal’s order for re-engagement of the employees at their old rate of pay, with the proviso that they would not receive any pay rises until their colleagues (who had agreed to the new terms) had caught up. (Manchester College v Hazel and another UKEAT/0642/11.)

SRA tells firms : find you own referral-fee workarounds

admin — Wed, 05 Sep 2012 10:00:04 +0000

In a discussion paper released yesterday the Solicitors Regulation Authority have warned that it will not provide law firms with ‘safe harbour’ guidance to deal with the forthcoming referral fee ban.

The SRA says solicitors and firms should be able to work out from the legislation behind the ban which arrangements will be acceptable.

The ban will come into force for all personal injury cases as of April 2013. Given the interest surrounding this ban it is believed that the SRA will publish further guidance setting out the legal interpretation of what is caught by the ban.

A consultation with the profession revealed that prescriptive direction was required along with a move away from outcome-focused regulation.

Services and age discrimination: ban to come into force

admin — Mon, 03 Sep 2012 08:16:50 +0000

Resource type: Articles: know-how

Status: Published on 30-Aug-2012

Jurisdiction: United Kingdom

On 1 October 2012, the ban on age discrimination in the provision of services will come into force. This change will affect service providers across the full spectrum from retailers to clubs, doctors and those in the financial services sector, who will have to review their practices to ensure that the way in which they provide their services to the public does not fall foul of the new rules.

Sarah Gregory and Paul Harrison, Baker & McKenzie LLP

On 1 October 2012, the ban on age discrimination in the provision of services will come into force. This will bring age into line with other discrimination strands (sex, race, religion/belief, sexual orientation, disability, gender reassignment and pregnancy/maternity) which already benefit from this protection (see box “The framework“).This change will affect service providers across the full spectrum from retailers to clubs, doctors and those in the financial services sector, who will have to review their practices to ensure that the way in which they provide their services to the public does not fall foul of the new rules.

However, there are a number of exceptions due to enter into force at the same time which will ensure that a number of common practices (for example, offering age-based concessions such as discounts for pensioners) are not caught, or which otherwise benefit entire industry sectors.

The new rules

The ban will prohibit age discrimination in the provision of services against those aged 18 and over only. Those under 18 will not be able to claim age discrimination (for example, by suggesting that they should be able to buy alcohol).

Service providers will still be able to provide different services to different people based on their age if:

They can demonstrate that the treatment is a proportionate means of achieving a legitimate aim (that is, it is “objectively justified”). However, harassment or victimisation because of a person’s age will not be capable of justification.
They can justify extra help to an age group with particular needs (that is, “positive action”). Positive discrimination, however, is not permitted.
Different treatment is permitted by law, whether because of the exceptions listed below or otherwise (the example given by the government is that of free sight tests for older people).

The exceptions

The exceptions due to come into force at the same time as the ban are as follows:

Financial services. There will be a broad exception permitting financial services providers (such as banks and insurance companies) to continue to use age as a factor in the products and prices that they offer (for example, in assessing risk). However, any assessment of risk must, so far as it involves a consideration of age, be based on relevant information from a source on which it is reasonable to rely (for example, actuarial models, projections or reports).

To address widespread concerns about the ability of some age groups to obtain insurance, particularly in the motor and travel sectors, the government concluded that a voluntary “signposting” scheme, aimed at referring customers to organisations that do provide insurance to their age group, would be more appropriate than legislative intervention, in line with its “light touch” approach to new regulation.

Age-based concessions or discounts. Service providers will continue to be able to offer concessions, discounts or more favourable terms to particular age groups, provided that the concession does not have the effect of preventing those in other age groups from using the service and is reasonable (such as offering a 10% discount to those over 65).

The government has dismissed concerns that this exception could be used to create artificial pricing structures designed to exclude older (or younger) people from access to particular services. An example might be a fashion retailer wishing to maintain a younger customer profile, inflating prices for clothing, while offering a 50% discount for the under-30s. The government’s view is that service providers are unlikely in practice to introduce a “warped” pricing system like this which would deprive them of customers.

Group holidays. Specialist holiday providers will be permitted to continue to design, market, offer and sell package holidays to people in particular age groups, such as those provided by Saga Holidays and Club 18-30. However, it will be unlawful for service providers to sell a standalone product, such as hotel rooms or flights, to a particular age group only, unless this can be objectively justified.

Age verification schemes. To provide certainty, the government has introduced a specific exception permitting retailers to ask all customers who appear to be under a particular age (to be determined by the retailer) for proof of age before selling age-restricted products, such as cigarettes or alcohol, provided that an appropriate notice is displayed.

Other exceptions. Further exceptions extend to: immigration (permitting the immigration authorities to take age into account when determining a person’s eligibility to enter and remain in the UK); sport (allowing age-restricted sporting leagues and competitions to continue); and residential park homes (permitting residential park homes to include minimum age limits in their admission rules).

The government concluded that there should be no exception for health and social care after reviewing evidence demonstrating that older people received inferior treatment. As such, doctors and others will need to be able to objectively justify any difference in treatment because of a person’s age. Similarly, the government was not persuaded that specific exceptions were required by those in the car rental and self-catering holiday accommodation sectors.

Looking ahead

There has been some criticism of the financial services exception, with organisations such as Age UK arguing that the exception is too wide and goes further than similar exceptions for gender and disability (both of which require that anything done under the exception is a “reasonable thing to do”). However, this and other exceptions will be welcomed by service providers as a proportionate response to the introduction of the age ban.

Service providers will now need to review any age-related practices and consider whether they fall within any of the specific exceptions or can be objectively justified. Retailers in particular should consider the extent to which targeting a particular age group through concessions or other measures could amount to indirect age discrimination and any justification.

Service providers should also review any policies and statements relating to equal access to ensure that they cover age, and consider what steps need to be taken to inform and train staff. The government has produced guidance for organisations which may help with this process (available via Equality Act guidance, Home Office).

Sarah Gregory is a partner and Paul Harrison is Of Counsel at Baker & McKenzie LLP.

For links to the legislation, consultation and other information on age discrimination, see Age discrimination, Home Office.

The framework

The Equality Act 2010 (2010 Act) entered into force on 1 October 2010 and prohibits (among other things) discrimination in the provision of services, the exercise of public functions and by clubs and other associations on the grounds of sex, race, religion/belief, disability, gender reassignment, pregnancy/maternity and sexual orientation (the protected characteristics) (Equality Act 2010: Royal Assent). It brought together the disparate strands of discrimination legislation to provide broadly uniform protection.

Although age discrimination is covered by the 2010 Act, the ban on age discrimination in the provision of services was not brought into force along with the rest of the 2010 Act, pending consultation (now concluded) on appropriate exceptions which would enable differential treatment based on age to continue, where that was regarded as beneficial.

Legal Ombudsman to be given responsibility for complaints about Claims Management Companies

admin — Tue, 28 Aug 2012 08:45:48 +0000

The government has today set out a long-expected plan to give the Legal Ombudsman responsibility for complaints about claims management companies. The move will take place in April 2013, the MoJ will be announcing this.

At present, these complaints are handled by the ministry’s Claims Management Regulation Unit.

The change will allow the unit, which will remain within the MoJ ‘to refocus its resources on working with the claims management industry to improve standards and take wider action against CMCs who consistently breach the rules’.

The Head of Claims Management Regulation quoted ‘This reform is a win for consumers and provides yet another tool to help stamp out malpractice in the industry…’.

This announcement follows the launch last week of a consultation on strengthening rules governing claims management companies.

Read the full story here

Petition fights clinical negligence clawback

admin — Fri, 24 Aug 2012 14:34:29 +0000

Campaigners for accident victims have launched a petition to stop a considerable amount of money being taken from successful claims funded through legal aid.

The MoJ intends to impose the Supplementary Legal Aid Scheme (SLAS) from April 2013 to allow for up to 25% of damages awarded to victims of clinical negligence to be deducted from their successful claims.

Not only does it target the most vulnerable and deserving victims, legal aid will only be available to those injured during pregnancy, labour or the first eight weeks of life regardless of the strength of the case or the income of the people making the claim.

Chief Executive Peter Walsh quoted “In other words it is as good as scrapping legal aid for all clinical negligence cases through the back door.”

The MoJ says this scheme will put money back into funding other legal aid cases and would also deliver savings from clients who choose not to take up legal aid and whose cases would be unsuccessful.

Read the full article here

Regulate will-writing, Society urges

admin — Tue, 17 Jul 2012 14:02:40 +0000

Monday 16 July 2012 by John Hyde Source : http://lawgazette.co.uk/news/regulate-will-writing-avoid-race-bottom-society-urges

The Law Society today backed plans to extend the list of reserved activities to include will-writing and estate administration.

In a consultation response to the Legal Services Board, the Society said reserved work should start at the point where client contact is first made and end when the will is executed.

The Society also believes the proposed scope for regulation should be comprehensive enough to include powers of attorney and trusts, to remove any confusion for consumers as to what protection they have. The LSB outlined proposals in April to extend regulation for will-writing to ensure consumer protections, including access to redress. Consultation on the issue closed today.

In its response, the Law Society says solicitors are trained and regulated to provide a good service for consumers.

It adds: ‘There is a clear risk if such professional values and breadth of knowledge is not required of providers who might enter the regulated market for the first time and be authorised to carry out work in this limited area of activity.

‘It is therefore imperative that the right structures are put in place to avoid risk to the consumer and the emergence of double standards of work.’

The Law Society said a consistent standard of regulation will reduce confusion for clients and discourage a ‘race to the bottom’ between competing regulators.

The response noted that voluntary self-regulation would not prevent a will-writer from continuing to act or controlling a business, even if they had been struck off the roll or suspended from practising. It said there is a two-tier system in the current market where not all providers are regulated.

The LSB launched the consultation after discovering problems around quality, service issues, transparency and fraud were more common in the unregulated sector.

Later this summer, a draft recommendation will be made to the lord chancellor, before a final report is produced in the winter.

Law Society sets out concerns on separate jurisdiction for Wales

admin — Fri, 13 Jul 2012 13:36:47 +0000

The Law Society has expressed a number of concerns in its response to the Welsh government’s consultation on whether there should be a separate jurisdiction for Wales.

There is concern that creating a separate legal jurisdiction in Wales could “dilute some of the benefits” which accrue to Wales from its present alignment with England. The creation of a separate jurisdiction for Wales would also raise questions regarding whether there needs to be a separate legal profession in Wales, and whether changes to the delivery of legal services, including the introduction of alternative business structures, would “continue to march in parallel” with England.

Dividing the profession could harm choice and competition. The Society states that, at present, the jurisdiction of England and Wales is a highly attractive forum in which to resolve disputes because it is “transparent, predictable, flexible and supports the needs of commerce”. It asks whether the legal services industry will suffer while this matter is being considered because parties are not sure how their contracts would be interpreted after any separation.

Source: Law Society consultation response, 28 June 2012.

Employees: duty of fidelity and fiduciary duties

admin — Tue, 10 Jul 2012 13:44:09 +0000

The Court of Appeal has allowed an appeal against the High Court’s decision that a former employee breached a contractual duty of fidelity and a fiduciary duty to his employer. The Court of Appeal found that the employee did not owe a fiduciary duty and was not in breach of the duty of fidelity when he failed to tell his employer about his meetings with clients during his notice period at which at which he discussed his future business plans.

The Court of Appeal held that both the content of the contractual obligation of fidelity and the existence and content of any fiduciary duty had to be determined by an employee’s contract of employment. Duties of fidelity and fiduciary duties that would be inconsistent with the terms of the contract could not exist. It further held that the implied duty of mutual trust and confidence could not be relied on, by itself, to give rise to a fiduciary relationship and the extent of the duty in any case would also be determined by the employee’s contract. In this case, the former employee had not owed a fiduciary duty to his employer and his conduct had not breached his duty of fidelity.

Source: (Ranson v Customer Systems plc [2012] EWCA Civ 841.)

Workers falling ill during statutory annual leave must be entitled to reschedule the affected leave

admin — Thu, 05 Jul 2012 15:37:14 +0000

The ECJ has held that a worker who becomes unfit for work during a period of statutory annual leave must, under Article 7(1) of the EC Working Time Directive, be entitled to reschedule the period of planned leave that coincides with the period of unfitness for work.

It was already clear from Pereda v Madrid Movilidad SA that a worker who becomes unfit for work before a period of statutory annual leave must be able to take that leave at a later date. In the ECJ’s view, it would be arbitrary, and contrary to the purpose of the Directive, to take a different approach where a worker falls ill after the leave has started.

Source:

(Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA) and others C-78/11 (ECJ).)

Equality Act 2010: Age discrimination ban commencement order published

admin — Wed, 04 Jul 2012 10:03:50 +0000

The Equality Act 2010 (Commencement No. 9) Order 2012 (SI 2012/1569) was made on 18 June 2012.

It will bring the provisions of the Act prohibiting age discrimination in relation to the provision of goods, services and facilities into force with effect from 1 October 2012.

As previously reported (see Legal update, Equality Act 2010: Ban on age discrimination in goods and services comes into force 1 October 2012), the government will bring forward an order setting out specific exceptions to the general ban.

The government intends to lay the exceptions order before Parliament over the summer, along with guidance to help businesses and organisations familiarise themselves with their responsibilities under the age discrimination provisions.

A copy of the latest draft of the exceptions order was published as part of the government’s response to the consultation on exceptions.

Sources: The Equality Act 2010 (Commencement No. 9) Order 2012 (SI 2012/1569); Equality Act 2010: Government response to the consultation on exceptions, 13 June 2012.