Bermans marked 50 years in business on 4 February 2020 and partner Fergal O’Cleirigh explains how the firm has gone from strength to strength and how it has adapted to the changing legal landscape.
The firm, which has offices in Manchester and Liverpool, was set up in 1970 by Liverpool based litigation lawyer Keith Berman. In 1980 Keith left the UK for New York where he established a New York office for the firm. The New York and Liverpool offices split in the early 1980s to create two independent firms both bearing Keith’s name but continued to work closely together.
The title of this article does not quite rise to the level of “Man Bites Dog”, but it refers to a rather unusual case which was reported recently and which provides a welcome albeit relatively unusual example of a dissatisfied customer accepting its liability under Hire Purchase Agreements and seeking its remedy against the supplier of the defective equipment.
New York Laser Clinic Limited v Naturastudios Limited [2019] EWHC 2892 (QB) involved the supply of a large quantity of laser equipment to the claimant for use in its laser hair removal business, following oral representations made by the supplier as to the performance of the equipment upon which the claimant made detailed profit projections which formed the basis of its business case put to 3 financiers.
One of the more nebulous provisions of CONC which has led to widely different interpretations in practice has been the rule relating to the disclosure of commission found at 4.5.3 which currently provides as follows:
“A credit broker must disclose to a customer in good time before a credit agreement or a consumer hire agreement is entered into, the existence of any commission or fee or other remuneration payable to the credit broker by the lender or owner or a third party in relation to a credit agreement or a consumer hire agreement, where knowledge of the existence or amount of the commission could actually or potentially:
On a separate but related note, the FCA’s October 2019 report has proposed a ban on commission models within the motor finance industry where the amount received by the broker is linked to the interest rate paid by the customer where the broker has the power to set or adjust this interest rate.
The FCA refers to these as “discretionary commission models”, which have a number of variations, but in essence the empirical evidence unearthed by the FCA’s enquiries strongly suggest that these discretionary commission models significantly disadvantaged customers compared to flat fee models of remuneration. The ban will be limited to regulated consumer credit agreements and will not extend to consumer hire.
The European Working Time Directive entitles workers to at least 4 weeks’ holiday per year. Many countries, including the UK, choose to give workers additional holiday entitlement over and above the minimum. The Working Time Regulations 1998 gives UK employees an additional 1.6 weeks of leave per year.
The Court of Justice of the European Union (ECJ) has looked at whether the right to carry over holiday due to sickness applies only to the 4 week entitlement under the Directive.
A dismissal for redundancy is likely to be unfair unless the employer has considered whether there is suitable alternative employment within the business (or group). If suitable alternative employment is offered, it might be subject to a statutory 4 week trial period if the role, place of work or other terms and conditions are different from the previous job. A statutory trial period starts at the end of the employee’s employment under their old contract or within 4 weeks of it ending.
What happens if a role is deleted in a reorganisation and an employee works in another suitable role for more than four weeks – do they lose the right to a redundancy payment?
How many working days is your business losing to hangovers? This is particularly relevant after the festive season where Christmas parties and social events often fall on a school night. Did your business suffer a flurry of suspicious tummy bugs during Christmas party season?
Some businesses are choosing to accommodate hangovers in a different way, keen to avoid the extra absence which seems to occur around this time of year.
A dismissal will be automatically unfair if the main reason for the dismissal is the fact that the employee has ‘blown the whistle’ on malpractice.
The Supreme Court has recently decided that an employer was liable for automatic unfair dismissal even though the decision maker was unaware of the protected disclosures.
Hot on the back of the #MeToo movement, the Equality and Human Rights Commission (EHRC) has published some non-statutory guidance on the use of confidentiality or non-disclosure agreements in discrimination cases. The guidance confirms that confidentiality clauses can be used in employment contracts to protect a business’s confidential information. However, they shouldn’t be used to stop a worker pursuing a discrimination claim in relation to future acts – those clauses will not be enforceable.
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