Author Archives: Richard Reid

Sports Direct Under Scrutiny for Claims of Race Discrimination

Sports Direct, Mike Ashley, Sarah Begley, The Wilkes Partnership, Birmingham, Solihull, Law Firm

Sports Direct have been accused of indirect race discrimination after an internal notice was distributed to staff banning them from speaking in any language except English, even during personal conversations at work.

Sarah Begley, Solicitor in the Employment team at The Wilkes Partnership, considers the implications of this, and what employers need to consider to prevent potential indirect discrimination.

It is understood that the notice was first spotted in a store in Bangor, North West Wales where workers pointed out that it prevented them from communicating in their own language during working hours. Soon it became evident that the notice had in fact been issued to all stores in the UK.

The company told all of its UK staff that for “health and safety” reasons, workers should not speak in any foreign language even when having a private conversation unless otherwise authorised by management.

Staff were told that those who failed to comply with the notice would be “subject to the disciplinary process”.

An investigation has now been launched by the Welsh Language Commissioner and bosses from the company run by Mike Ashley have been forced to issue an apology, but denied prejudice against the Welsh and any other members of staff that may have been offended by the notice and its contents.

Sarah Begley comments: “Dealing with discrimination and equality issues can be particularly challenging within the workplace. For a company to issue an order for workers to communicate in a particular language, they must identify a clear business reason and the requirement needs to be a proportionate one.

This potentially could give rise to a claim of indirect race discrimination and any large scale action could prove costly for the company. The question turns on whether there is objective justification for the policy in question. This case serves as a useful reminder to employers of the importance of complying with the Equality Act 2010 when introducing company policies.”

The starting point for any organisation in avoiding discrimination issues arising is to implement an equal opportunities policy. The Wilkes Partnership can supply you with an equal opportunities policy (as well as other HR policies) at a fixed price.  To find out more about the Wilkes HR Policies for Business package click here.

To discuss anything arising from this update, please contact any member of the Employment Team on 0121 233 4333 or email us at employment@wilkes.co.uk

Is Retail The Next Big Thing In Planning?

Retail Planning, The Wilkes Partnership Birmingham, Solihull, Stuart Tym

Statistics show that planning applications for new retail premises have fallen to an eight-year low amid continued growth of e-commerce, a new study shows.

There were 6,525 applications in England in the year to March, almost half the number in 2008/09 and down by 11% on 2014/15, said Lendy.

Let’s face it – the High Street and the retail environment has changed a huge amount in the last few years despite planning policies to protect it. The Town where I live has a very poor quality High Street as a result of some of the best out of town shopping in the area.

A combination of an increased online presence for major retailers and out of town retail shopping centres (both with lower over heads) becomes a common sense move for a lot of larger retailers.

Retail planning policies remain one of the more complicated areas of planning law. A sequential test must be applied (to identify preferable sites for a development within the town centre first). If the sequential test points to a development needing to be undertaken outside of the town centre (often due to size constraints) an impact test must also be undertaken in a bid to stop the decline. You can read the governments guidelines here.

In my time advising planning committees in-house I have heard too many committee members look to turn their back on these national policies either because the policies are simply too complex or because the lure of another big name brand to their town is too great.

It remains, as I have advised those committees, a highly contentious area, not least because the complainant is likely to be a rival supermarket whose competing site is then turned down.

The Forest of Dean District Council have been in the High Court for getting retail policies very wrong in the last week. You can read the judgement in full here.

Part of the Courts reasoning for the Councils approval being quashed is a failure to consistently apply retail impact or town centre first policies.

If you are promoting a retail site, no matter how small or large, or acting for an LPA in determining a retail site early legal advice is key.

For help with any Planning related matter please contact Stuart Tym on 0121 233 4333 or via email on  stym@wilkes.co.uk.

Gender Pay Gap Reporting Should Be a Wakeup Call For SMEs

Sarah Begley, Employment Lawyers, Solicitor, Solihull, Shirley, Birmingham

The gender pay gap has been hitting the headlines recently, with both the civil service and BBC revealing the discrepancies between what men and women are paid in their organisations.

This is part of a new legal requirement for all UK companies with more than 250 staff to track and report on their gender pay gap.

Sarah Begley of The Wilkes Partnership’s employment law team, comments:

“As they are not subject to mandatory gender pay gap reporting, SMEs might think this is an area they don’t need to pay much attention to. However, just because reporting on gender pay isn’t compulsory for smaller businesses, it does not mean you should neglect striving for pay equality amongst your staff.

“The recent removal of tribunal fees make it much easier for any employee to make a claim against an employer they think has not complied with equal pay or gender discrimination regulations. So, employers should make sure they are doing everything they can from a legal perspective to ensure that employees of any gender are treated and remunerated equally.

The best place to start is to review your HR policies to make sure they are up-to-date and comply with current regulation, and it’s also worth undertaking your own benchmarking exercise to establish what, if any, gender pay gap there is in your organisation.”

Wilkes’ employment team are currently offering businesses the opportunity to purchase a comprehensive set of HR Polices & Procedures at a fixed price.

To discuss this service, contact the employment team on 0121 233 4333 or email us at employment@wilkes.co.uk

Safeguarding the Vulnerable – Deputy or LPA?

Sophie Fenn, Lasting Power of Attorney, The Wilkes Partnership Solicitors, Solihull, Birmingham

Denzil Lush, retired senior judge of the Court of Protection, has today spoken out regarding the lack of safeguards in the power of attorney system in England and Wales and has vowed to never sign one himself.

Sophie Fenn, Associate Solicitor at our Solihull office examines Mr Lush’s comments and offers her expert opinion on how to safeguard vulnerable individuals from financial abuse.

A power of attorney, either “enduring” if made prior to October 2007, or “lasting” if made more recently, enables attorneys to act on behalf of the donor, most commonly in relation to financial decisions.

Appointing an attorney is a decision based on trust and only if alerted to financial abuse will the office of the public guardian, part of the ministry of justice, get involved with the attorney’s decision making.

The alternative, which the judge said was his personal preference, is the appointment of a deputy, by the court of Protection, to make financial decisions for someone who has already lost capacity. The identity of the deputy is therefore a decision for the court, not the individual.

A deputy is supervised on an ongoing basis and has to submit annual accounts and put in place an insurance bond, to protect the individual’s assets.

Sadly there are cases of financial abuse facilitated by a lasting power of attorney.  However compared to the 2.5 million registered powers of attorney in existence, the reported cases are relatively small in number but there are no doubt many more out there that don’t come to light meaning elderly and vulnerable adults are being financially abused with potentially no hope of redress.

For most people, however, a lasting power of attorney is an important planning document, which enables finances to be managed without delay or disruption in the event on incapacity.

Appointing a professional attorney where the attorney is familiar with the relevant requirements and has to adhere to their own professional standards may be an appropriate option for some.

Our team of specialist solicitors regularly act as professional attorneys and deputies, which is another alternative, enabling decisions to be made with independence and scrutiny by a trusted legal professional.

If you would like to know more, for yourself, a friend or a family member, please contact Ann-Marie Aston on aaston@wilkes.co.uk / 0121 733 4336 or Sophie Fenn on sfenn@wilkes.co.uk / 0121 733 4337.

 

Court Departs from the ‘Sharing Principle’ in a Divorce Settlement

Aaron Keene - The Wilkes Partnership Solicitors, Divorce, Family Law, Solihull, Birmingham

In a recent ruling, in June of this year, the courts followed an increasing trend for financial settlements of divorcing couples to reflect more accurately the contributions that each partner made to the marriage.

In this piece Aaron Keene, Partner and Head of Family Law at The Wilkes Partnership Solicitors examines what this ruling means for couples seeking divorce in relation to the division of assets.

In this case, the marriage had been short, there were no children and the couple, in their early forties, had both worked and maintained separate finances.

Although the couple’s basic salaries had been similar, the wife had been paid very substantial bonuses of about ten million pounds by her employer. She contended that it was a fiction to suggest that the husband had contributed, even indirectly, to the generation of that income.

The court ruled that an automatic or blind application of a 50/50 split in every case would not be true to the intentions of the Matrimonial Causes Act 1973, which expressly required the court to consider all the circumstances of the case.

The court referred to guidance given by the House of Lords which indicated that where there had been a short, childless marriage with dual incomes and where only some of their finances had been pooled, the need to achieve overall fairness between the parties might require a reduction from a full 50 per cent share or the exclusion of some property from the 50 per cent calculation.

In this case the wife’s bonuses were not deemed to be “family assets” as they had not been generated by the joint efforts of the parties and the husband had made no domestic or business contribution to the source of them.

It was not a case where the husband was said to have contributed more to the home life or welfare of the family than the wife.  Accordingly, the bonuses were, in essence, removed from the financial settlement calculation.

In addition to retaining one half of the capital value of the two matrimonial homes, the husband did however, receive an additional award to reflect a combination of: (a) the standard of living enjoyed during the marriage; (b) the need for a modest capital fund in order to live in the property that he was to retain; and (c) some share in the assets held by the wife.

Aaron Keene, comments “This ruling is a major step forward for both sense and equality; with the courts taking a more reasoned view of what assets are personal and which are communal and belong to the family. However it should be noted that this was a case of a short and childless marriage. ”.

If you would like assistance in relation to a family matter, call Aaron Keene at The Wilkes Partnership on 0121 785 4400 for further information or email abkeene@wilkes.co.uk.

Further Crematorium Development Trend Continues

The Wilkes Partnership Solicitors, Birmingham, Solihull, NAFD, Planning

Those of you who visited the Wilkes Stand at the recent NAFD Expo at Stoneleigh Park will have picked up the Planning Dept’s Briefing Note on Development in the greenbelt which also drew on the recent Watermead PC Case in the Court of Appeal; demonstrating the difficulties in building a crematorium, particularly, in that case, on greenbelt land.

June 2017 saw another crematorium case make the High Court – Dignity Funerals Limited v Breckland District Council. It is a reminder of the duties under section 38 (6) of the Planning and Compulsory Purchase Act 2004 (giving the Development Plan primacy) and also explores the duty to consider alternative sites and other material considerations.

The case concerned a new crematorium development in Breckland, which as you might expect attracted considerable local interest.  The planning permission was legally challenged by the Claimant, Dignity Funerals, who sought to promote a competing site.

Technical points were raised with s.38 (6) compliance, which do not raise particularly new or novele points of law. Our team of experienced planning lawyers can advise generally on the importance of s. 38 (6) in any planning application.

In this case the LPA was notified of the Claimant’s alternative site by letter a few days prior to planning committee; that included details of the location of the alternative site and an indicative masterplan.

Importantly it had not been submitted as an alternative during the application / objection process.  Such last minute submissions are, of course, not uncommon. Members were informed that details of an alternative site were provided, but that there was insufficient information to assess this further and consequently “limited weight” should be attached to it.

This was a lawful exercise of the LPA’s planning judgment. The Judge rejected any contention from the Claimant that planning policies which, required harm to be “minimised”, implied a duty for alternative sites to be considered to see if the level of harm could be more acceptable.

It is therefore important for developers and local planning authorities to stay ahead of the game and ensure that the planning permissions issued are robust.

Such an approach was adopted by Breckland Council throughout the planning application process to ensure that the consultations; notification duties; decision making processes; screening documents; and committee reports, were legally robust.

Wilkes can advise applicants, planning authorities and / or rival developers of the best way through the planning system to obtain the consents their businesses require.

Early legal advice is always beneficial and valuable to help protect against successful challenge.

For help with any Planning related matter please contact Stuart Tym on 0121 233 4333 or via email on stym@wilkes.co.uk

Nationwide Strikes a Blow to Ground Rent

Amanda Holden, Ground rent, Wilkes Solicitors, Birmingham, Solihull, Landlord, Buying & Selling Property Houses

This spring Nationwide Building Society announced its decision to stop lending against any leasehold new-build flats and houses where the ground rent is more than 0.1% of the value of the property – in a move aimed at challenging unfair ground rent increases.

Amanda Holden, Senior Associate Solicitor at The Wilkes Partnership Solihull, explains the impact this is likely to have on purchasers as well as property developers.

Amanda said: “It remains to be seen, but this could well lead to other lenders following suit. This is likely to have a positive impact for the buyers – as it is expected to force developers to reduce ground rents making these properties more affordable in the longer term.

“Ground rent is different to the service charge payment due under a lease.  Service charge payments cover the costs of insuring the building, maintaining the common parts of the building and things of this nature.

For houses – as opposed to flats-  that are sold on a leasehold basis there are usually no communal areas and therefore no service charge payments due, but there will still be ground rent payments.  Property owners receive nothing in return for ground rent which is seen by some as an outdated form of tax. Ground rents have been known to increase by as much as double every 10 years in some cases.

“Where developers are concerned, it is – now more than ever – vital that they seek legal advice as early on in their project planning and setting of ground rent levels as possible to ensure that they will be able to achieve the return on investment that they are aiming for. Otherwise they may encounter difficulties or delay in planned disposals if the mortgage market is restricted as a consequence of the ground rent mechanism.

“We may now see an emergence of commonhold sales for certain types of multi-tenanted property including blocks of flats. The legal structure is in place for these but they are almost completely unheard of in the current market.

The difference between commonhold and leasehold is that a service charge still applies but the unit owners through membership of a Commonhold Association owns the land and so there is no ground rent payable.

We should see a revision of how ground rents are set and indeed may see them disappear altogether for unit sales that should otherwise be freehold transactions.”

If you have any queries regarding leasehold, commonhold or freehold property sales from a buyer perspective or as a property developer, please contact Amanda Holden at The Wilkes Partnership on 0121 733 8000 or email aholden@wilkes.co.uk

 

Planning – What’s Next?

Planning - The Wilkes Partnership Solicitors, Birmingham, Solihull, Stuart Tym

The Planning Team at Wilkes recently acted for North Kesteven District Council in their defence of the refusal of planning permission for the partial demolition of the conservation area at Greyless Hospital, Rauceby, Lincolnshire in June/July.

The site features on the heritage at risk register for the East Midlands.

The appeal included heritage (p133, 134 NPPF) matters, technical structural matters and viability evidence and the decision, to be made by Inspector David Rose, is likely to be an interesting read.

A decision is expected in mid September. We will provide an update in due course.

Planning Events Update

Following the success of the Wilkes inaugural Summer Planning Conference we are busy planning our Autumn event (currently scheduled to take place on the 16th November 2017) where our panel of experts will update you on the key developments in the world of planning.

To register your interest in attending, or if there is a specific area of planning you would like us to discuss at the event please drop Stuart a line at stym@wilkes.co.uk

 

Going Abroad Alone With The Kids This Summer?

The Wilkes Partnership Solicitors, Birmingham, Solihull Law Firm, Notary Public

When going on holiday overseas, passport, tickets, sun-cream are usually top of the list of items to remember to take with you. However, if you are a single parent or parent travelling without the other parent or, indeed, the grandparent or other family member or friend travelling with a minor, you also need to think about whether you need valid consent for the children to travel. 

Sadly, child trafficking is a growing problem and border security and airlines are becoming increasingly vigilant regarding the paperwork and written authorities they require where children are travelling with only one adult or adults who are not their parents.

Ann-Marie Aston, Partner and Notary Public at The Wilkes Partnership Solicitors in Solihull has experience of dealing with cases where a parent or grandparent is travelling overseas with a minor and paperwork has been required.  If the accompanying adults do not have the valid consent, problems could be encountered on arrival if only one parent or neither parent is accompanying the minor.

To avoid the risk of being turned away on arrival at the destination country or questioned by border police, it is well worth checking with the airline or on the country’s website about their rules and policies on children arriving at their border with only one parent or neither parent.

Ann-Marie Aston advises that “often, a signed letter of authority from the other parent or parents, stating who is travelling with their child, and details of the travel together with dates which is then notarised by a notary public, will often suffice.

Particularly, travel to the United States and Canada will require this but increasingly other countries as well as cruise holidays have been known to require documentation also”.

For further information on this and other notary services you may require, please contact Ann-Marie Aston of The Wilkes Partnership Solicitors on aaston@wilkes.co.uk or 0121 733 4336.

BREAKING: Supreme Court Scraps “Unlawful” Employment Tribunal Fees

The Wilkes Partnership Solicitors, Birmingham, Solihull, Employment Tribunal Fees Scrapped

In arguably the most significant judgement in employment law over the last 50 years, the Supreme Court has today decided that the Employment Tribunal and Employment Appeal Tribunal Fees Order 2013 prevents access to justice and is unlawful.

Additionally, it was found that the fee regime indirectly discriminates against women because a higher proportion of women bring discrimination cases.

Sarah Begley of The Wilkes Partnership Employment Team examines this landmark decision and discusses the possible outcomes.

The government introduced fees in 2013 with the aim of reducing the number of malicious and weak cases, but that led to over a 70% reduction in cases over three years.

The short-term consequence will be that the Fees Order is quashed meaning that as of today fees cease to be payable in the employment tribunal and fees paid in the past must be reimbursed (anticipated to be up to £32m).

Of wider significance is the constitutional aspect of the judgement which reinforces the importance of the constitutional right of access to the courts, an essential element of the rule of law. It was held that the Fees Order did effectively prevent access to justice.

In the longer term, it is probable that there will be a government consultation paper to bring in a new fees regime with the possibility of fees at a lower level and/or involving fees to be paid by the respondent. We will have to watch this space but it is unlikely that the fees regime will be abolished permanently.

You can read today’s judgement in full here.

Today’s decision is unwelcome news for employers and the government but welcome news for potential claimants.

If you are an employer and are concerned about your HR policies and employment contracts you can find out more about our new HR Polices for Business Package here.

To discuss anything arising from this update or any other employment matter, please contact Sarah Begley on 0121 733 4312 or via email at sbegley@wilkes.co.uk.

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