Asset financiers have not had much comfort from the sorry tale of the Arena TV fraud, but we did notice with interest a passage in a recent judgment against the main perpetrator individuals behind the fraud which illustrates the principle that in certain circumstances victims of fraud can trace assets such as foreign property which the fraudsters have obtained with the proceeds of the fraud.
Continue ReadingOn 9 December 2022 HM Treasury published a consultation paper on reform of the Consumer Credit Act 1974 (“CCA”).
The Government announced its intention to reform the CCA in June 2022, with the ambition of moving most of the CCA from statute to FCA rules. Given the scale and complexity of this work, it is expected to take a number of years. The consultation paper is the first step in this process. In it, HM Treasury seeks views on the objectives, principles and overall direction of the proposed reform.
Continue ReadingAs long ago as 2001 in the landmark case of Royal Bank of Scotland Plc v Etridge [2001] UKHL 44 the House of Lords (since renamed the UK Supreme Court) significantly extended the circumstances in which a financier will be put on constructive notice of misrepresentation or undue influence committed against an individual executing a Guarantee or other security, but there remains a great deal of misunderstanding of the relevant principles.
Continue Reading
Adrian Fryer
Sections 100(1)(d) and (e) of the Employment Rights Act 1996 provide employees with protection from dismissal if they leave the workplace, refuse to return to it, or take other steps to protect themselves, if they reasonably believe there is serious and imminent danger. The first Covid-related claim of this nature reached the Court of Appeal in Rodgers v Leeds Laser Cutting. The employee worked in a large warehouse with few other employees. There were Covid-related safety measures in place even before the first lockdown, including extra cleaning and social distancing. The employee worked the first week of lockdown but then messaged his manager to say he wouldn’t be coming to work until lockdown eased. He was worried about passing on the virus to his vulnerable child. He was dismissed a month later and brought an unfair dismissal claim.
Continue ReadingAdrian Fryer
If an employee wins an unfair dismissal case, the employment tribunal will decide how much compensation is due. If the employer has made procedural errors during the dismissal, and the tribunal decides that the employee would have been dismissed anyway had a fair procedure been followed, the tribunal can reduce compensation to zero. This principle is known as the Polkey principle – named after the case from which the principle derived. The EAT has considered this issue recently in Teixeira v Zaika Restaurants.
Continue ReadingAdrian Fryer
The DWP has published its annual increases for various employment related pay rates which will take effect in April 2023. Statutory maternity, paternity, shared parental and parental bereavement pay will increase from £156.66 to £172.48. Statutory sick pay will go up from £99.35 to £109.40.
National minimum wage levels will also increase in April 2023:
COT3 settlement agreements, negotiated and arranged by Acas, can be a cheap and easy way to settle employment tribunal claims. The Court of Appeal has considered a case where an employee brought a claim after signing a COT3, the terms of which the employer said prevented him from bringing the claim. There is currently conflicting case law on the ability for settlement agreements to waive future, unknown claims. Royal National Orthopaedic Hospital Trust v Howard said that if parties want to settle unknown future claims, the wording of the agreement must be absolutely clear on that. However, in Bathgate v Technip, the Scottish EAT said that the law did not allow parties to settle unknown future claims.
Continue ReadingAdrian Fryer
Employers are obliged to make reasonable adjustments to remove or reduce any substantial disadvantage that disabled employees experience because of workplace arrangements. In Hilaire v Luton Borough Council, the EAT has confirmed the limits of that requirement. The employee was disabled. The employer went through a reorganisation and needed to make redundancies. All employees were required to interview for a place in the new structure. Adjustments were made for the employee, including extra time and support with his job application. However, he refused to attend an interview and submitted a sick note saying he was not well enough. He didn’t respond to requests about when he would be fit. All 13 other candidates had been interviewed and decisions needed to be made, so the employee was given a deadline to attend an interview. He said he was too ill. However, a week later he attended an appeal hearing against a sickness sanction. He was dismissed for redundancy.
Continue ReadingAdrian Fryer
The EAT has given judgment in an employment status claim which confirms that the ‘label’ that parties place on a working relationship is only one piece of the puzzle. Too much weight must not be given to that label if the reality of the relationship suggests something different. In Richards v Waterfield Homes and Unity Build and Repairs, the employee worked for the business as a skilled carpenter. At the time he was taken on, he was registered with the CIS as a contractor. CIS is a scheme where a sub-contractor can have 20 per cent, rather than 30 per cent, of earnings deducted and paid to HMRC in tax and NI (with a reckoning at the end of the year). The CIS scheme is an industry wide scheme where workers are treated as self-employed. All workers for the business were described as self-employed. The business switched the employee to an employment contract in 2018 after taking legal advice about ‘regularising’ contracts. The employee objected to the contract because it described him as an employee from 2018 rather than 2010 when he started working for the business..
Continue ReadingAdrian Fryer
If an employee wins a claim for unfair dismissal, a tribunal will decide what compensation is fair in the circumstances. The stakes are raised in a whistleblowing unfair dismissal because the statutory unfair dismissal compensation cap (currently £93,878 or a year’s gross pay, whichever is less) does not apply. Employees are required to ‘mitigate’ their losses by seeking employment elsewhere. If there are additional reasons why the employee in a whistleblowing case has not been able to secure alternative employment – because of stigma associate with the whistleblowing – they will need to provide evidence in support of that contention.
Continue Reading
| 
