Member News

A recent decision of the Employment Appeal Tribunal (EAT) has confirmed that a taxi driver who was free to work as and when he liked was not an employee. Professional Support Lawyer Elizabeth Stevens and Trainee Solicitor Laura Tanguay report.

The claimant in this case, Mr Knight, worked as a taxi driver with Fairway & Kenwood Car Service. Under the terms of their written agreement, Mr Knight was free to work or not work as and when he pleased.

Mr Knight brought a claim for wrongful dismissal, which was rejected by the employment tribunal on the grounds that he was not engaged under a contract of employment. He appealed against the tribunal’s decision to the EAT.

The EAT reviewed the relevant case law in this area which has established that, for a contract to be a contract of employment, it must infer an obligation to work and enable the employer to exercise some degree of control.

The EAT considered whether Mr Knight was under any obligation to work for Fairway & Kenwood and concluded that he was not. There was no contractual requirement for him to work a minimum number of hours or accept a minimum number of jobs. So long as the weekly ‘rent’ was paid to Fairway & Kenwood, Mr Knight was not in fact obliged to work at all. The fact that the taxi driver actually worked seven days a week in reality was not, in itself, sufficient to say that an employee-employer relationship should be implied by the tribunal.

Mr Knight’s appeal was therefore dismissed by the EAT and his claim for wrongful dismissal rejected.

Comment

This case is a useful reminder that tribunals will not infer an employee-employer relationship where there is clear evidence (in this case a written agreement between the parties) that a worker is not required to work – even if in reality he or she is working seven days a week. There was no suggestion in this case that the agreement was a sham and did not reflect the true arrangement between the parties. It is important when engaging such workers to make sure that any written agreement is an accurate reflection of the working arrangements.

A copy of the EAT judgment is available here.

Talented young Great Yarmouth chef Daniel Marshall faces an Olympic-style challenge in the kitchen as he represents Great Britain in a culinary contest against rivals from around the world.

Having been voted best young chef in the country, the 21-year-old will take on more than 20 other fledging contestants in Berlin tomorrow for the title of International Young Chef of the Year.

It’s the 36th international final of the Chaîne des Rôtisseurs’ Young Chef contest, one of the most prestigious in the business.

Daniel, a chef de partie at the Imperial Hotel, was thrilled to win the national title and has no qualms about taking on some of the world’s top young chefs from as far afield as Australia, Italy, Japan, Indonesia, Israel, the USA and Russia.

“We have to create a three-course menu for four people out of a ‘mystery box’ of ingredients in three-and-a-half hours,” he said. “I’m fairly confident about the taste and presentation of my food but I mainly worry about getting the menu right. We have only half an hour to plan it and you know the meal must eventually be perfect and on time.

“It will be a wonderful experience as we are visiting restaurants and food markets around Berlin and later I have a month working alongside 2 Michelin star chef Nils Henkel in Germany.”

Daniel’s success in the GB final has already brought him the prize of two days cooking with Anton Mosimann in London and six days with the Red Carnation boutique hotel group.

But he still loves going back to work at the Imperial in Great Yarmouth – close to his home in St Peters Road – and learning from the award-winning chefs there. And his head won’t be turned however he fares in the international final.

“You have to be ambitious and I have various ideas for the future but I have a lot to learn yet,” said the former Great Yarmouth College student.

Imperial Hotel director Nicholas Mobbs said: “Daniel has tremendous ability and enthusiasm and deserves to do well. It would be like another Gold Medal for GB and Norfolk if he succeeds.”

Employment law is one of the most complex and fast moving areas of law and keeping up to date with these changes can prove vital to protecting and advancing your commercial interests.

Leading east of England law firm Birketts are holding half day seminars followed by lunch and networking in Norwich, Cambridge, Ipswich, Chelmsford, Norwich, Kings Lynn, Great Yarmouth and Huntingdon across September to bring you up to date on the key legislative and case law developments of the last year and those we can expect to see in 2013.

Topics to be discussed include:

• Changes relating to holidays redundancies and conduct dismissal • Polices and procedures – are you up to date and complying with recent developments? • What can we expect to happen in employment law in the next 12 months?

Tom Wagstaff a Partner in Birketts’ employment team commented”. In the last seven years we’ve seen big changes which have significant practical implications for HR Teams. Our focus in these seminars will be on developments affecting your day to day management of staff “

To book a place at one of our seminars please email bookings@birketts.co.uk and specify the place of the event you would like to attend in the subject heading.

Leathes Prior successfully represented Norwich based business AgChemAccess Limited in its legal battle with the Health and Safety Executive after a dispute over enforcement action taken against the company in July.

The HSE issued enforcement action on July 10 ordering the company not to move any of its UK stock as inspectors believed there was a breach of safety regulations linked to the packaging of a shipment of the herbicide glyphosate.

The ban was eventually lifted on August 29 after the company sought, with the help of Leathes Prior, a judicial review in the High Court and the HSE agreed to quash the notices a matter of hours before the hearing was due to take place.

Nick Gooch, the managing director at AgChemAccess, accused the agency of being too heavy-handed by imposing a blanket ban on the movement of all its products stored in two warehouses, instead of focusing solely on the shipment issue.

He said as well as the legal challenge, which had already cost the company £200,000 in legal fees, which will now be met by the taxpayer, the company, which employs about 65 staff, was suing for damages for around £2m in lost business.

Mr Gooch, who started the business in 2004, said the issue had almost brought the firm to its knees.

“They were told that a small amount of this product had leaked,” Mr Gooch said. “They didn’t stop and ask any questions – they just ploughed on. Because of what was happening we couldn’t move anything and we had to dramatically reduce the workforce with 10 people losing their jobs.”

“This has been absolutely disastrous for us,” he added. “We have got products left in store which we can’t sell for another year and if it had gone on another two or three weeks, we would have gone out of business.”

“Not only have we had to shed 10 jobs, but our UK and international reputation has suffered,” he added. “We have long-standing customers who have gone elsewhere because we could not deliver to them. Potential new contracts have also been lost. Thanks to our outstanding legal team, headed by Darren Bowen a Partner in Leathes Prior’s Dispute Resolution and Agricultural Teams we can now start trading again.”

Darren Bowen a Partner at Leathes Prior said: “We were surprised by the actions of the HSE inspector in this matter and we were extremely pleased to be able to assist AgChemAccess Limited in successfully challenging the decisions taken. The HSE has an important role to play in protecting the public interest but, as demonstrated in this case, this needs to be balanced against the rights of a business to undertake its legitimate trade. I believe it is fair to say that, on this occasion, the HSE got it very wrong.”

Emma Alfieri reports on the Law Commission’s recently published consultation.

The Law Commission has today (Tuesday 11 September) published a consultation claiming there is a “lack of legal clarity” about the way in which financial matters are decided upon divorce and upon dissolution of Civil Partnerships.

Under the current law, there are detailed statutory provisions about the orders that the court can make where couples cannot agree financial matters between them; but the statute does not say what the court is to achieve by making these orders. Therefore the report claims that if a member of the public read the relevant legislation they would have “no sense of what the outcome would be”.

The reports goes on to say that the judge in the family court has been compared to a bus driver, who has been told how to drive the bus and told that he must drive it, but has not been told where to go, nor why he is to go there.

There is also evidence of regional inconsistencies, with different outcomes favoured in different courts. The uncertainty in the law has given rise to dissatisfaction, as has its obscurity, and both those factors are increasingly causes for concern in an era when access to legal advice is going to be more limited following reform of legal aid.

The paper goes on to ask whether financial support should continue to be determined by the court, at the judge’s discretion, or whether it should be calculated by reference to a formula, so substituting greater predictability for individualised discretion. A number of other jurisdictions have taken this route, notably Canada where interestingly financial support is based on the length of the relationship and the difference between the spouses’ incomes.

The report also proposes that “non-matrimonial property” held in one spouse’s name alone and acquired as a gift or inheritance, or before their marriage, should not be shared unless it helps meet their partner’s needs.

The consultation period is open until 11 December 2012. The Commission’s final Report on Pre-nuptial and Post-nuptial Agreements (expected in the autumn of 2013) will then make recommendations for principled reform.

Emma Alfieri from our family team comments: “A formulaic approach would provide certainty however parties should still be able to apply to the court if the formula works out to be unfair given the particular circumstances of the case.

This is a difficult area of the law and there is not going to be any “quick fix” solutions. The report stresses that other jurisdictions that have achieved fundamental reform of the law have done so after years of research and piloting. This is an important area of social policy and therefore reform is going to take time”.

OpenContact has been shortlisted in the category for ‘Outsource Contact Centre Provider of the Year’ in the National Outsourcing Associations 2012 awards. The awards in association with Wipro Technologies saw a record number of entries in every category and winners will be announced at the awards ceremony in London on October 25th 2012.

The annual awards require detailed submission based on the value providers add to their clients, use of innovation and best industry practice, continuous improvement and a host of other criteria. NOA Chairman, Martyn Hart said “not only is this a record breaking year for quantity, all of the award submissions are of outstanding quality. We always look forward to this time of year, as it brings a unique opportunity to compare best practice and reward the companies who are pushing the industry forward. The effort and detail that has gone into the submissions makes me proud to be a part of our rapidly maturing industry, and also proud that so many companies see the value of competing to win a NOAA. Short-listing has been difficult – choosing a winner will be even harder”.

OpenContact’s Head of Client Services, Steve Gregory said: “We based our entry on how we continuously add value to our clients, how we deliver best industry practice and ultimately what we achieve for our clients. Our partnerships with GoApe and UK General featured in our submission which clearly impressed the judges. We are up against big industry names in this category but are confident we match up to them in terms of being a successful outsource contact centre provider with delighted clients”

– ENDS –

Press contacts:

OpenContact Steve Gregory: 01603 895406 / steve.gregory@opencontact.co.uk Fiona Temple: 01603 895405 / fiona.temple@opencontact.co.uk Website: https://www.opencontact.co.uk

The National Outsourcing Association Natalie : +44 (0)207 292 8689/ nataliem@noa.co.uk

About OpenContact: Established over 11 years ago in Norwich, OpenContact is an outsourced customer contact centre designed to manage customer encounters on behalf of our clients and deliver the customer experience they need. Still family owned and operated, Fiona Temple and her team always create a bespoke service to match every client’s specific requirements and deliver to them consistently.

OpenContact’s work includes: GoApe, UK General Insurance, Mattressman, Harrod Horticultural, Debenhams, John Lewis.

About The NOA Established as a not-for-profit organisation, operating for over 20 years, the NOA acts as an independent body. Mission Statement: The NOA aims to be the centre of excellence in outsourcing. The NOAs main objective is to communicate to a wider audience: – The principles of best practice in outsourcing, shared services and insourcing – The significant benefits and strategic lessons of outsourcing, shared services and insourcing Members: The NOA represents member organisations across the sourcing industry. Members fall into three main categories: Users – UK and overseas companies who engage in outsourcing, shared services and insourcing Suppliers – companies who provide these services Support services – legal, consultancy and recruitment companies which support the sourcing industry – END TO ALL –

Unfair dismissal, disciplinary allegations, discrimination and other employment-related problems can often lead to employees and employers facing the prospect of having their dispute heard by a tribunal, but how many of us have any idea of what this truly entails?

Leading East of England law firm Birketts will provide an informative and fascinating insight when it presents a mock employment tribunal on the 19th September at The University of East Anglia.

Aimed primarily at line managers and HR professionals, the event is a realistic employment tribunal complete with a judge and panel, witnesses and cross-examinations by London and Oxford based 13 KBW Chamber members Clare Harrington and Richard Owen-Thomas.

Judge Chris Ash who is now retired but was a serving Judge in Norwich for 19 years will be presiding over the Mock Tribunal. Judge Ash will have no prior knowledge of the scenario and will listen to the facts as presented on the day.

Jeanette Wheeler head of the Birketts employment team in Norwich said “Tribunals can be extremely time-consuming for senior managers and HR professionals. If a case does end up at tribunal, there are, potentially, significant financial awards and legal fees, together with disruption to management time.”

“Being involved in an employment tribunal can be a daunting prospect. With employment litigation on the rise, it is helpful for HR practitioners and employers to know what to expect. The mock tribunal provides the opportunity to observe how a tribunal is conducted in practice and a chance to gain a better understanding of the process.”

Jeanette continued “Any manager who is involved in the process of disciplining or managing grievances is likely at some time to have to appear as a witness at tribunal and knowing what to expect and the detail in which the decision is to be scrutinised is invaluable and we strongly urge those managers to attend”.

The Birketts mock employment tribunal takes place on 19th September in the Thomas Paine lecture theatre at The University of East Anglia Norwich. There are still limited places available.

For more information pleasecontact Alastair Clark on 01245 211 334 or email Alastair-clark@birketts.co.uk

ILM Level 3 Certificate in First Line Management.

The ILM Level 3 Award in First Line Management, ILM Level 3 Certificate in First Line Management is a qualification that has been specially designed to give practising or aspiring first line managers a solid foundation in their formal development as a manager.

The Certificate provides a more comprehensive programme that builds and broadens the skills and knowledge gained in the Award (please note candidates may join the Certificate directly and are not required to undertake the Award as a prerequisite). Here organisational change is explored, giving participants a deeper understanding of this critical workplace issue and providing them with the tools to plan for and deal with organisational upheaval. The crucial skill of time management is also explored in the fourth mandatory unit for the Certificate.

Level 3 Certificate in First Line Management

• Minimum 20 credits
• Minimum 120 hours
• Completion within three years
• Induction – two hours
• Tutorial support – at least four hour
• Four mandatory units with a combined credit value of 7
• Optional units with a minimum total credit value of 13
• Work-based assignment, plus
• Change management report

Depending on the units selected, a choice of: work-based assignments, reflective reviews, knowledge reviews, oral presentations, role-play/scenarios, written reports or centre-devised alternatives.There are no formal entry requirements but participants will normally be practising or aspiring first line managers with the opportunity to meet the assessment demands and have a background that will enable them to benefit from the programme.

For pricing details or further information, advice or guidance please do not hesitate to contact us on contact us on 01603 610586.

also available:ILM Level 3Award in Leadership and Management

Lexia Media is delighted to have celebrated the launch of its charity book, 100 Women in 100 Words.

The book, which celebrates inspirational women from across Norfolk and Suffolk, was officially launched at a celebratory event on September 5th.

More than 50 of the featured women attended the event to be presented with a copy of the book and a bottle of fizz, courtesy of Adnams.

The project – proceeds from which will go to the East Anglian Eve Appeal – was created by Lexia Media, which has offices in Norwich and Woodbidge,and saw the agency flooded with nominations from proud colleagues, family members and friends of inspirational women.

Each featured female is now celebrated within the book in a summary of 100 words with a photograph.

Lexia Media managing director Deborah Watson said: “The project started as a low-key discussion about how we could celebrate women from this region in a way which would mark the centenary of International Women’s Day.

“It evolved into an idea which takes the modern communication approach of us all writing in shortened form in texts and tweets, and putting that into a book which would capture great businesswomen, carers and educators.

“We really are thrilled with the level of nominations we received and are just looking forward to the project helping us to raise a significant amount of money for a female-specific cancer charity.”

Gabrielle Neal, chairman of Eve Appeal East Anglia, said: “I am delighted to have been asked to feature in a very flattering book celebrating what I, and I suspect ninety-nine others, thought was just a case of ‘getting on with life and doing something we each enjoy’.

“In 2008, my life was brought into sharp focus with the diagnosis of endometrial cancer. Having undergone a successful radical hysterectomy, I was eager to find a way of ensuring that other women would receive the advice and help needed in order to get an early diagnosis of any one of the five gynae cancers. That led me to the Eve Appeal and I am delighted that the funds from this book will assist that cause.”

Many of our clients have required advice regarding the recent website cookie laws and now that the dust has settled we have taken a look at how companies have interpreted the new law in our article Cookie Ruling Roundup.

The new ICO rules were not very clear regarding the use of Google Analytics on sites which uses cookies and our article Cookies, the ICO, and what you need to know is our interpretation of the rules. I hope you find this uesful and we would appreciate your views or experiences on this or if you would like to find out more please contact me, Mark Ellaway on 01603 513080

Steeles Law Head of Planning & Environment David Merson looks at the Coalition’s proposals to revise the rules governing householder development as part of the Prime Minister’s growth plan.

David Cameron has announced that he is “more determined than ever to cut through the dither that holds this country back”.

The Coalition is apparently “… determined to cut through the bureaucracy that holds us back. That starts with getting the planners off our backs, getting behind the businesses that have the ambition to expand, and meeting the aspirations of families that want to buy or improve a home”.

He is therefore planning an emergency three year-long free-for-all in house extensions allowing homeowners to build up to eight metres into their gardens without local council planning permission.

The proposals have been flagged up in a Ministerial Statement issued today by Eric Pickles.

The temporary relaxation of the permitted development rights regime is proposed to remove unnecessary cost and time delays to people’s improvement plans because at present planning permission is required for any change to a home that extends more than three metres from the property’s rear wall in the case of a terraced property and four metres in the case of a detached property.

The consultation paper has not as yet been issued so precise details are unavailable but it is understood that it is now proposed that during the relaxation, householders will be able to build single storey extensions to extend to six or eight metres beyond the property’s rear wall, depending on whether it is a terraced or detached property. Existing restrictions will continue to apply in Conservation Areas.

Further changes are also being promoted in respect of the expansion of business premises to allow shop expansion by 100 sq m and industrial units by 200 sq m up to the boundary of the premises.

There is also a U-turn on recently shelved plans to allow the change of use from commercial to residential purposes, without the need for planning permission subject to an “opportunity for authorities to seek a local exemption where they believe there will be an adverse economic impact”.

The removal of some limited householder planning control in respect of extensions and conservatories in well-to-do suburbs is unlikely, in itself, to solve the current economic crisis given the difficulties with bank lending and the ability to fund such development.

There must however be some concern about first, the short term impact that it will undoubtedly have on relations between neighbours who have different views on the impact of any development proposals that might come forward and second, the longer term impact of any unrestrained development on the places in which people continue to live and work.

Unrestrained shop and industrial extensions of the magnitude proposed could have significant long term implications although no ‘adverse economic impact’ exemption is apparently proposed for this proposal.

If you require further information or advice on any issues raised in this article or any other planning & environmental matter please contact David Merson on 020 7421 1720 or dmerson@steeleslaw.co.uk

A recent decision of the Employment Appeal Tribunal (EAT) illustrates how an employer can take steps to prevent a breach of trust and confidence that may otherwise give rise to a claim for constructive dismissal. Employment Principal Lorna Townsend reports.

In this case, the employee worked as a chef in a pub. He was suspended from work by his manager and invited to an investigatory meeting on the grounds that he had not turned up for work when he had been asked to do so. At the investigatory meeting, it was established that the employee was on authorised holiday at the relevant time. As a result, it was decided that no further action should be taken.

The employee raised a grievance about the way he had been treated by his manager. He then attended two return to work meetings at which various options for his return were discussed, but he subsequently resigned as a result of his treatment by the manager and the company. His grievance was not concluded, on the basis that he had refused to return to work.

The employee’s claim for constructive unfair dismissal was not upheld. The tribunal agreed that the manager’s actions were inappropriate and over-reactive, and concluded that they were likely to damage the relationship of trust and confidence with the claimant. However, the tribunal was satisfied that the respondent had prevented the manager’s conduct from constituting a breach of the implied term of trust and confidence entitling him to resign and regarding himself as constructively dismissed. In its investigation of the disciplinary matter, the respondent had accepted the claimant’s version of events and stated that no further action would be taken. He was also offered the option of transferring to another pub to work with a different manager.

The EAT has now dismissed the claimant’s appeal against the tribunal’s decision. It has emphasised the distinction between a fundamental breach of contract that an apology by the employer cannot cure, and there being action by an employer that can prevent a breach of contract taking place. In this case, the “fair minded” way in which the investigatory meeting proceeded meant that it prevented the matter escalating into a state of affairs that would have justified the claimant leaving and claiming he was constructively dismissed.

Comment This case provides a good example of how, in following a fair procedure, the employer has avoided the escalation of a dispute into circumstances giving rise to a fundamental breach of contract.

As the EAT points out in its judgment, the whole object of a grievance procedure and a disciplinary procedure is that the employee has the opportunity to articulate his concerns about the behaviour of management, and to defend himself against allegations that in some way he is unfit to remain in the employment of the employer.

If an employer acts fairly and reasonably in following such procedures, it will often be able to prevent a fundamental breach of contract occurring, meaning that the employee will have no grounds for claiming constructive unfair dismissal.

A copy of the EAT judgment is available here