‘Living wage’ sparks debate

According to Article 5 of the Equality and Human Rights Commission nobody can be deprived of their liberty without reason.

If a relative of yours has been moved into a care home against their wishes and they are unable to leave, you have the right to appeal for their liberty through the court of protection, according to Ann-Marie Aston Partner in the Private client team at Wilkes.

The law is very clear on this matter, she says. Providing due process has been followed then the deprivation of their liberty is lawful. However if any of these three criteria have not been meet then you have grounds for appeal:

1. The individual has a diagnosis of mental illness
2. The individual lacks the mental capacity to agree to being locked up
3. The individual is over 18

In 2009 Deprivation of Liberty Safeguards (DoLs) were added to the Mental Capacity Act 2005. The safeguards have been put in place to make sure that people in care homes and hospitals are looked after in a way that does not inappropriately restrict their freedom.

Unfortunately, there are many instances where due process has not been carried out by the Local Authority and families are often unaware of their rights to appeal. Many elderly people can be provided with appropriate care within their own homes and so do not need to be moved.

Even in instances where the Local Authority or the NHS has granted a deprivation order, the family still has the right to appeal against the decision.

There are 850,000 people in the UK who have been diagnosed with dementia and each year there are growing numbers of DoL applications. Clearly with an ageing population this is a problem that is not going to go away and with increasing pressure on care homes it is important for individuals to be cared for in their own homes for as long as possible.

If you would like more information on Deprivation of Liberty Safeguards please contact Ann-Marie Aston on 0121 733 8000 aaston@wilkes.co.uk.

The festive season can have a big impact on businesses in terms of potential workplace issues.  For instance, difficulties can arise with winter travel disruption resulting in possible unauthorised absences and, if not managed properly, an increase in holiday requests for the Christmas break could lead to staff shortages.

Lisa Moore, Associate in the Employment Team, considers several issues which employers may need to consider at this time of year:-

On-line shopping– As Christmas approaches and people become busier, they may well be inclined to carry out their shopping on-line whilst at work. Employers are advised to have a very clear IT policy setting out what is and is not acceptable and should remind employees of this as necessary.

Secret Santa– Secret Santa is something that workplaces are increasingly participating in during the run up to Christmas. Whilst seemingly harmless fun, it does have the potential to cause problems. Employers have no direct control over what an employee may choose to buy for another employee. However, they could find themselves potentially liable for claims such as bullying, harassment and/or discrimination if an entirely inappropriate gift is purchased that causes offence to the recipient. Employers may therefore wish to ensure that members of staff are clearly informed of the need to exercise caution when purchasing gifts and that buying inappropriate gifts that could cause offence is likely to lead to disciplinary action. Employers could also provide examples of gifts that would (and would not be) acceptable in attempt to avoid any misunderstanding arising.

Annual leave– The Christmas break can be a very difficult time for employers in this respect. Where a business intends to close for Christmas but employees are required to use their annual leave during this period, then it must be made clear well in advance. Where the office is open as usual, the business should consider the minimum staffing levels required which would ensure that it could still adequately continue to operate. Where competing leave requests are made which cannot all be agreed, then it is essential to authorise leave in a fair and consistent manner. For instance, denying someone a leave request over Christmas because their religious beliefs are such that they do not celebrate it, could result in a complaint of discrimination.

The office party– Firstly, in terms of planning for an office party, it is important to remember to include all staff members in the invitation. This could include those on sick or maternity leave. It would also be a mistake to deliberately exclude any members of staff who maybe do not celebrate Christmas. Equally, employees who may have, say, childcare responsibilities should not be forced to attend an event outside of normal office hours. Secondly, care should be taken when organising the catering for a party. Employers should ensure that there is a sufficient range of options in terms of food and drinks so that everyone is catered for. Prior to the event, employers may wish to encourage employees to consider and plan how they will get home. In terms of the party itself, members of staff should be clearly reminded in advance that whilst they may well be in their own time and off work premises, the event is in every respect an extension of the work place. Accordingly, any inappropriate behaviour is no more acceptable than it would be on a routine basis and employees should be aware that such behaviour would be dealt with in accordance with the company’s usual disciplinary rules.

Social media– Either during or following Christmas events, employees should be reminded not to post any comments which may bring the company into disrepute on social media platforms such as Facebook or Instagram. Similarly, members of staff should be warned against sharing photographs from events which could cause offence or perhaps would infringe another employee’s right to privacy. Again, if necessary, members of staff should be made aware as to any implications of breaching the company’s social media policy.

Lisa Moore comments, “In order to protect their position as far as possible, employers should review their existing policies which relate to these issues then communicate/re-state them to all members of staff and make any contingency plans as may be necessary. Further to the points outlined above, Acas have recently published some helpful guidance for employers on ‘workplace issues over the winter months’ which businesses may find useful. This note can be accessed via the ‘Advice and Guidance’ section on the Acas website.”

To discuss anything arising from this update, please contact Lisa Moore or any member of the Employment Team on 0121 233 4333. 

In a revolutionary decision of an Employment Tribunal sitting in London in the case of, Dewhurst v Revisecatch & City Sprint, employment Judge Joffe has held that TUPE applies to ‘workers’ as well as to traditional ‘employees’.

The definition of ‘employee’ is defined within regulation 2(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) as, ‘any individual who works for another person whether under a contract of service or apprenticeship or otherwise’. It is the phrase, ‘or otherwise’ that Judge Joffe applied to include ‘workers’ to fit the definition of ‘employee’ for the purposes of TUPE.

Established case law within the European Courts has given discretion to national courts when interpreting the meaning behind ‘employee’ for the purposes of TUPE. UK legislation under the Employment Rights Act 1996 (‘the ERA’) defines an employee as, ‘an individual who has entered into or works under… a contract of service or apprenticeship’.

The Dewhurst case regarded cycle couriers who had contracts to provide services to a company (and were considered to be contractors rather than employees). The Claimants brought various claims against the Respondents including claims under TUPE for a failure to inform and consult with them about the transfer. A strong argument was put forward as to the differences between contracts for services and contracts of services. However, it was to no avail.

In the end, Judge Joffe ruled that a ‘worker’ within the meaning of the ERA and regulation 2(1) of the Working Time Regulations 1998 is an ‘employee’ within the meaning of regulation 2(1) of TUPE.

Pam Sidhu, Senior Associate in our Employment Team comments, “Previous to this case, it was always arguable that workers may be covered under TUPE, given the reference to “or otherwise” in definition of employee in TUPE. Some previous case law also suggested that TUPE applied to workers, not just employees. This case adds strength to the argument that workers now have TUPE rights; however note that they will still not qualify for unfair dismissal and redundancy pay rights (which are “employee” rights only).  Also, it is still the case that genuinely self-employed consultants will not be covered by TUPE. The case is an interesting one and opens the door for Employment Tribunals to possibly narrow the difference between who is an employee and who is a worker for other purposes, and throws into yet further spotlight the rights of workers and the gig economy”.

Lisa Moore, Associate in our Employment Team comments: “As a result of this decision, parties involved in a transaction where TUPE is likely to apply should take particular care when considering which members of staff are likely to be affected. It is, however, important to be mindful that, as this decision was made at first instance by an Employment Tribunal, it is only persuasive rather than being binding as things stand.  I anticipate that the decision may well be appealed in due course. We will provide further updates as the matter progresses.”

Our Employment Team would be happy to assist with any queries you may have relating to either TUPE or employment status.

To discuss anything arising from this update, please contact Pam Sidhu, Lisa Moore or any member of the Employment Team on 0121 233 4333.

Adrian Schuck, Associate Solicitor in our Birmingham Private Client Team discusses the importance of proper estate planning for farmers and individuals involved more broadly in agricultural related business.

A will is your Legacy and an essential part of your plan to ensure that your Estate is distributed in the manner you intend. This is perhaps of particular importance to a farmer, whose assets may include the farm and business to which they have devoted their life’s work.

All farmers and businesses are different but we often hear “I want to ensure that the my farm and business are passed on to those I want to inherit them, without them having to be sold” and “how can I do this and also reduce the amount of inheritance tax?”

It is here that an appropriately drafted will tailored to the Farmer’s circumstances is essential.

To allow the Farmer some control over who benefits under their Will, a discretionary Trust may be suitable, allowing the Farmer to appoint trustees who are responsible for what is distributed to which Beneficiaries, on what terms and when. This may be of particular appeal to a farmer who has concerns that certain assets may be at risk of potential divorce, bankruptcy or mismanagement.

A suitably worded letter would accompany the Will providing guidance as to how they envisage the Farm and Business should be run which the Trustees can take into account upon the Farmer’s death.

If the Farmer’s estate exceeds their inheritance tax thresholds, consideration should also be given to the availability of agricultural property relief (APR) and business property relief (BPR) so that the Farm and Business may be left free of tax under the terms of their Will.

It is therefore imperative that consideration is given to the structure of the Farmer’s Business and their ownership or occupation of the Farm at the time of making their Will in order that appropriate lifetime planning can be undertaken.

If you are a farmer, a business owner or you own agricultural property and would like to discuss any of the points raised in this article, please contact Adrian Schuck on 0121 710 5900 or aschuck@wilkes.co.uk