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LEGAL BRIEF RESIDENTIAL PROPERTY UPDATES |
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EMPLOYMENT LAW UPDATES Changes of contract terms and conditions If an employer seeks unilaterally to make changes to the terms and conditions of an employee’s contract of employment and the employee is not in agreement with them, it is generally a breach of contract. In serious cases, the employee can have the right to reject the employer’s proposals and to resign and claim constructive dismissal. Other options open to the employee are:
In the case of Robinson –v- Tescom Corporation, Mr Robinson objected to Tescom’s restructuring proposals. He wrote to his employer saying that he did not accept the new terms and conditions and was treating the change as a breach of contract but would work under the terms of the varied job description, under protest whilst regarding himself as dismissed and retaining the right to claim damages in future, if a satisfactory agreement was not reached. However he failed to work to the new terms and was subsequently summarily dismissed for failing to follow a reasonable management instruction. He brought claims for unfair dismissal and breach of contract. The Employment Tribunal dismissed Mr Robinson’s claims and the decision was upheld on appeal. The option he chose required that he work in accordance with the varied contract, albeit under protest. He did not do so, but insisted on working to the terms of his original contract while the situation was under review and ignored the new job description to which he had agreed to work. The employee in this case was left without a remedy because he confused the options open to an employee in such circumstances. Contact Martin R. Miller for advice on changes in contract terms. mmiller@mclellans.co.uk Age discrimination - young workers The Employment Equality (Age) Regulations 2006 make direct and indirect age discrimination illegal in an employment context, unless the treatment can be objectively justified. The legislation applies to discrimination against young as well as older workers. Recently, a women who claimed that she was dismissed for being “too young” won her age discrimination claim. Leanne Wilkinson was 18 years old when she began working for Springwell Engineering Limited as an office administrator. She was dismissed without notice during a three month probationary period and was asked to leave the premises immediately. She claimed that her employer had told her that they needed an older more experienced person to do the job. Her employer claimed that she was dismissed on the grounds of capability. The Employment Tribunal upheld Miss Wilkinson’s claim. The company had relied on a “stereotypical” assumption that capability equals experience and experience equals being older. Employers should provide equal opportunities training so that the stereotypical views linking age with competence do not go unchecked leaving you open to a claim. Contact Martin R. Miller for advice on any employment discrimination law matter. The Government has announced a compromise deal between unions and employers that will give agency workers in the UK many of the same rights as employees after 12 weeks employment. It is hoped that this will improve the lot of agency workers whilst providing employers with flexibility. Agreement has been reached on the following points:-
The Government believes that this will lead to agreement in Europe on an Agency Workers Directive that secures the flexibility the UK seeks. Contact Martin R Miller for advice on the legal aspects of your temporary or permanent staff agreements. mmiller@mclellans.co.uk Employer responsible for work related suicide Employers have a duty of care to prevent foreseeable injury to employees. The House of Lords has ruled that the widow of a man who committed suicide six years after he had suffered severe head injuries in a workplace accident should be compensated by his former employer. The employer admitted liability for the accident. In this case, the foreseeable harm was depression and this was the cause of the mans suicide. There was therefore no break in the chain of causation. Unfair dismissal and alcohol policy A recent case serves as a reminder of the importance of making known and abiding by your internal policies and procedures. The Employment Appeal Tribunal ruled that the dismissal of a council employee who had consumed alcohol whilst on duty was unfair because the council had failed to make it known its alcohol policy and had not followed it when dismissing him. Time to train – consultation on proposed new rights The Government has launched a consultation on a proposed new law whereby employees will have the right to request time off work to complete relevant training. The entitlement will apply to all employees who have worked for their employer for a minimum of 26 weeks. It is proposed that requests should be treated in a similar way to those for flexible working with employers required to give them serious consideration. Contact Martin R. Miller for advice on any such matters. mmiller@mclellans.co.uk Autumn 2009 RESIDENTIAL PROPERTY UPDATES Estate agency fees require more than introduction Estate agents must do more for their money than simply show a potential purchaser around a property, following a recent decision of the Court of Appeal. When a Mrs Bicknell signed a standard sole-agency agreement with Foxtons Limited to sell her £1.4 million home she agreed, among other things to pay the agency 2.5 per cent of the sale price if contracts were exchanged with a purchaser introduced by us (Foxtons) In June 2005, Foxtons showed a Mr and Mrs Low around the house three times but after initially showing interest in the property, the couple took no further action. In July, Mrs Bicknell ended the sole agency arrangement and agreed a multiple agency deal with Foxtons at 3 per cent commission. She then appointed a second firm, Hamptons International, at a 2.25 per cent commission rate. In October, Hamptons spoke to the Lows and persuaded them to view the house again, eventually securing an offer of £1.15 million for the property. The offer was accepted and the purchase was completed in January 2006. Hamptons duly submitted an invoice for their commission and received payment. When Foxtons learned of the sale, however, they also sought to be paid a commission. When payment was refused, they commenced court proceedings. The lower court decided I favour of Foxtons on the basis that the Lows were a purchaser introduced by Foxtons and this alone was sufficient to secure their right to a commission. On appeal, the question of the meaning of “a purchaser introduced by us” was again raised. The Court of Appeal held that in order to charge commission, an agent must be the effective cause of the sale. Simply introducing a property to a person who eventually becomes the purchaser is not sufficient. Mrs Bicknell was not required to pay Foxtons for their initial, unsuccessful introduction. Had the reverse been true, she would have been in the unusual position of having to pay two agencies a commission for the same sale. Contact Martin R. Miller for advice on estate agency fee disputes. mmiller@mclellans.co.uk Autumn 2008 Possession alone not enough for Ownership Two recent cases have confirmed that obtaining legal title by adverse possession (“squatter’s rights”) does not depend solely on occupying the property exclusively for your own benefit, without opposition, for the required period of time. In the first case, a traveller sought to obtain legal title to an area of verge which was part of the public highway but on which he had lived for several years. His claim failed because obstruction of the highway is a criminal offence. In the second case, a man occupied a garage exclusively after a “squat” was legitimised by adverse possession and a tenant’s organisation set up. He was prevented from obtaining title to the garage, however, because he had encouraged the tenants association to believe the garage would be part of the communal property Contact Martin R. Miller for advice if your land is being informally occupied by others, they may seek to obtain legal title to it. mmiller@mclellans.co.uk Buyers and sellers of homes in England and Wales should be aware of changes to the Home Information Pack (HIP) regime that come into effect on 6th April 2009. From that date the temporary first day marketing exemption is removed. All properties will need a HIP from the first day they are marketed. A Property Information Questionnaire must be completed by the seller and included in the HIP. It will no longer be permitted for insurance to be put in place to cover missing data in the HIP. This means that all searches must be complete before the HIP is used. Contact Martin R. Miller for advice about HIP’s packs. mmiller@mclellans.co.uk Summer 2009 A property owner recently won a court order preventing customers of a bar from crossing his land despite there being an easement in favour of the owner of the bar. The reason? The easement was granted in 1921, when the use of the access across the land was different. The circumstances under which it was given no longer applied. Contact Martin R. Miller for advice on the legal effect of easements. mmiller@mclellans.co.uk Planning permission is only part of the story If you are considering building an extension to your property, you may think that it is simply a matter of getting planning permission and finding a builder. A recent case shows however, how important covenants affecting property can be in determining whether developments of any kind can go ahead. The case involved an upmarket housing estate near Reading, with properties adjacent to the Thames. One of the homeowners wanted to build a three storey extension to his property that would have partially obscured the view of the river for some of his neighbours. The neighbours objected to the planning application. Property owners have a general right to light, but there is no general right in law to a view. The planning inspector’s opinion was that whilst there would be some loss of view for one household, this did not result in a material diminution in living standards. The planning application was granted on appeal. The objectors then used a different line f attack relying on a covenant prohibiting owners from doing anything which would constitute a “nuisance or annoyance” to the other owners on the estate. One owner in particular argued that he put great store on his river views, which would be greatly curtailed by the extension. Also the windows in one aspect of the development would interfere with his privacy. Other owners gave evidence that their views of the river would be partially obscured. In objective terms, the obstruction of the view was minor. However the judge who visited the estate and had the benefit of seeing computer generated evidence, decided that “reasonable people having regard to the ordinary use of their houses for pleasurable enjoyment” would regard the three storey red brick extension as an annoyance within the meaning of the covenant. Contact Martin R. Miller if you are concerned about the effect that a planned development in your neighbourhood may have on you. mmiller@mclellans.co.uk Summer 2009 |
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