Last updateTue, 24 Feb 2015 5pm



In the first of a series of articles Sara Lindemann considers forfeiture for breach of covenant and mortgagee protection provisions

Ask a lender to name their top three red-flag issues when it comes to commercial property due diligence and, more likely than not, ‘lease forfeiture clauses’ will feature in that list.

Helen Thompson sets out the possible legal remedies after sepsis is misdiagnosed or not recognised

In recent years, cases of patient deaths due to incorrect diagnosis and delayed treatment of sepsis have caught the attention of the media. According to the UK Sepsis Trust, there are around 150,000 cases of sepsis each year, of which 30% prove fatal. An independent report by the National Confidential Enquiry into patient outcome and death revealed delays in identifying sepsis in more than a third of cases.

Will Hampshire and Richard Kenyon outline ten key developments that the next 12 months have in store for employers and their advisers

Back at the beginning of the 19th century, skilled artisans in the textile industry were locked in a fierce battle with a rising class of industrialists. The Luddites smashed the new looms which they said produced cheap, inferior goods that threatened their way of life and protested against wage cutting and the use of unapprenticed youths as cheap labour. The state deployed the army and introduced legislation banning trade union organisation and making loom smashing a capital offence. People were killed on both sides and a number of Luddites were hanged.

Richard Kenyon and Olivia Baxendale consider how domestic employment law might change if the UK votes to leave the EU

On 23 June 2016, we will have to answer the question: ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’ After weeks of escalating rhetoric, it will be the people who have the last word, not the politicians.

Edward Bennett assesses the value of SIAM and multi-sourcing in 2016

In an economic climate where chief technology officers (CTOs) are increasingly required to deliver ever more for less, the service integration and management (SIAM) tower model was much-discussed in 2015. The SIAM tower model generates significant press and controversy, belying the fact that it is, in reality, a variant on a more familiar multi-sourcing model, evolved to recognise and provide for the reality that many businesses do not have the experience and capability to manage multiple suppliers.

Louise Benski and Richard Kenyon examine the trend towards state enforcement of employment law rights, including the proposals to tackle abuse of vulnerable workers

The criminal law can encroach into employment territory in a number of ways. Obvious examples might include breaches of health and safety, national minimum wage (NMW) and anti-bribery legislation. But there are less obvious examples too. Hands up all those who knew that s165(2) of the Employment Rights Act 1996 criminalises an employer who fails, without reasonable excuse, to provide written particulars of a redundancy payment calculation? It is not enough for the employer merely to type the employee’s termination date, age, service and weekly pay into to calculate the statutory redundancy pay due. If the employer then provides only the answer and not the calculation to the employee, it could be liable on summary conviction to a fine not exceeding level 1 on the standard scale. And if the employee then requests a written statement under s165(3) and the employer fails to respond within the set notice period, it could face a fine under s165(4) not exceeding level 3 on the standard scale. For all those with your hands up, well done. Now leave them up if you know of any employer that has actually been prosecuted under these provisions. What, no hands?

Richard Kenyon and Catherine Meredith analyse the impact of new legislation and recent developments in employment case law on preventing forced labour

On 25 March 1807, the Abolition of the Slave Trade Act entered the statute book, passed by a majority of 41 votes to 20 in the Lords and a majority of 114 to 15 in the Commons. That was a good start but in the 208 years since that date, slavery, servitude, forced or compulsory labour and human trafficking have, unfortunately, not been eradicated.

Emily Tetley-Jones investigates the Infrastructure Act, how it proposes to facilitate oil and gas exploration and production projects, and the difficulties with the compensation scheme for those affected by such projects

In 2010 the Supreme Court dismissed the appeal brought by Mohammed Al-Fayed’s company, Bocardo SA, against the Court of Appeal’s decision to award only minimal damages for trespass by an oil company which laterally drilled 800m under the appellant’s land without its consent.

Property fraud is on the up, and recent cases highlight the importance of vigilance by solicitors, especially when dealing with vulnerable clients. Jayne Elkins and Karen McGinley investigate

Property fraud is a hot topic and incidents of fraud are on the increase. Why is this? Arguably, it is largely as a result of a series of changes in Land Registry practice as the majority of property in England and Wales is registered land.

Following the main political party conferences, Richard Kenyon considers on some of the employment-related policies we can expect to see debated as the 2015 general election approaches

The Fixed-Term Parliaments Act 2011 provides for general elections to be held on the first Thursday in May every five years. An earlier general election can occur where either:

Graeme Nuttall OBE sees employee ownership trusts as the perfect succession solution

Too many owner managers have overlooked employee ownership as a business succession solution. New tax exemptions should ensure that the indirect employee ownership business model achieves the recognition it deserves: one that provides a neat exit that is good for a business; good for employees and good for the UK economy.

The government’s attempt to stamp out intermediary arrangements to facilitate false self-employment could affect a wide range of legitimate business models, warns James Warren

Determining the employment status of individuals who hold themselves out as self-employed can be a vexed and complex issue for employment lawyers, let alone their clients. It has also troubled Her Majesty’s Revenue and Customs (HMRC), not just because of its difficulty, but because of a justified concern that in some instances the cloak of self-employment has been used to avoid the operation of PAYE for arrangements that would otherwise be identified as involving employment. HMRC’s attempts to minimise ‘false self-employment’ and to simplify the analysis for tax purposes have led to the creation of parallel regimes. An individual’s employment status for tax purposes may be different to their status for common law and other statutory purposes. This has only added to the unfortunate confusion and lack of clarity for all concerned.

This year’s conference season revealed a number of divisions between the three main political parties on issues such as low pay and employment rights, report Richard Kenyon and Will Hampshire

In the absence of what now seems to be a highly unlikely motion of no confidence or two thirds majority vote to go early, the Fixed-term Parliaments Act 2011 provides that the next general election will be held on 7 May 2015. In that context, the 2013 party conference season sat at a slightly awkward moment in the political calendar – too far in advance of an election for an impassioned call to arms, but close enough for the parties to want to begin to distinguish themselves for the electorate. Employment, and as a consequence employment law, remains an obvious concern to voters and therefore to anyone with political ambition.

Andrew Morgan , who specialises in asbestos claims, looks at the hidden cost of the recent reforms

The insurance industry can be forgiven for looking like the fat cat that got the cream. The previous government largely respected the industry’s position on a range of issues relating, in particular, to personal injury litigation, and attempts to reform and curtail the cost of injured people bringing claims continued steadily. The insurers’ agenda, that the quality of the claims process should be secondary to costs, was never seriously questioned by that government. The judiciary too, by and large, lined up behind the industry’s core proposals.

Roger Sargologo and Carlos Pierce consider below what fracking involves and the legal issues that arise

Barely a day goes by nowadays without there being something in the news about fracking or protests connected with a proposed site.

Simon Briskman looks at how to manage a contractual crisis

Most outsourcings are too big to fail. Customers may need a year or more to reprocure and suppliers cannot easily afford to lose significant revenue. Reputations and careers revolve around managing and resolving problems, not hitting the red button marked terminate.

Richard Kenyon and Louise Fernandes-Owen present a guide to what is happening when in the government’s overhaul of the employment law system

The government’s plan to introduce ‘the most radical reform to the employment law system for decades’ is gathering pace. For those of us who have been tracking the numerous announcements, calls for evidence, consultation papers and responses, the coming months will see many of the key proposals finally come into force.

Gary Pickard looks at some recent cases and the issues to be considered when buying or taking security over open land.

The last year or so has seen a flurry of cases coming through the courts relating to town and village greens and commons, which appear to have been driven by:

Richard Kenyon and Lee Harding examine the government’s proposals to scrap the service provision change test and the requirement to provide employee liability information

On 17 January 2013 the coalition government issued a consultation on proposed changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). Arising from the government’s review of employment law and its Red Tape Challenge, the proposals aim to ‘improve’ and ‘simplify’ TUPE ‘for all parties involved’.

The government has failed to address many of the concerns highlighted during the consultation on shares for rights, finds James Warren

Unheralded, it was the most radical government proposal for employment law reform of last year. George Osborne’s October 2012 announcement of a new form of employment status, the ‘employee owner’, was a surprise, but it immediately garnered enormous interest. However, the hasty consultation that followed showed that business and employee concerns far outweighed any enthusiasm it might have generated. An overwhelming 92% of respondents had mixed or negative views about the anticipated take-up of employee-owner status and, among others, the submission of the Employment Lawyers Association (ELA) set out a raft of issues that it suggested needed further consideration.

Graeme Nuttall and Richard Kenyon analyse the government’s plan for employees to give up certain employment rights in return for shares in the company for which they work

In his party conference speech, the Labour leader, Ed Miliband, unexpectedly championed former conservative prime minister Benjamin Disraeli. Chancellor George Osborne’s tongue-in-cheek riposte, in his own party conference address, was to cite Marx and Engels. ‘Workers of the world unite’, he announced, rounding off his proposal that employees will soon be able to trade employment rights for shares. In a ‘voluntary three-way deal’:

Alan Woolston and Chris Farrell assess the outcome of two recent cases

Commercial contracts require certainty, so it is perhaps surprising that one of the most uncertain of contractual duties is the requirement for a party to use ‘reasonable’, ‘all reasonable’ or ‘best’ endeavours, or some other combination, to discharge some obligation or another. When performance comes under the spotlight, what has (or has not) been done can be of fundamental importance to the very crux of the contract.

Despite the controversy surrounding Adrian Beecroft’s proposals to make it easier to sack under-performing employees, a number of his ideas may yet make it onto the statute books, report Richard Kenyon and Jennifer Platt

The publication of the previously leaked Beecroft Report in May 2012 generated some dramatic headlines and polarised comment. Vince Cable, the business secretary, described some of the proposals as ‘bonkers’ and Adrian Beecroft apparently retorted that Cable was a ‘socialist’ who has done ‘little to support business’. It is all too tempting to go for the man rather than just his ideas: Beecroft, the Aston Martin-driving asset stripper and pantomime villain, pontificating about easy and cheap ways of sacking poorly performing staff. The Report itself might be summed up as little more than a pamphlet of pet hates, unencumbered by anything that might reasonably be described as evidence or research and lacking a good proof read – the reference to the ‘Employment Rights Act 1976’ hardly inspires confidence in the quality of the product. Not all of these are cheap shots. The ‘Report’ is no more than a collection of initial ideas, rather than a set of conclusions derived from a thorough analysis.

The EAT has tightened up its approach to the duty to make reasonable adjustments, write Nick Thorpe and Gemma Rusling

In recent years, tribunals have applied the duty to make reasonable adjustments fairly widely. But do they sometimes go too far? In Newcastle upon Tyne Hospitals NHS Foundation Trust v Bagley [2012], the Employment Appeal Tribunal (EAT) held that the tribunal had and overturned its finding that the employer (the trust) had failed to make reasonable adjustments in failing to facilitate a disabled employee’s application for Permanent Injury Benefit.

Antony Phillips and Christopher Hill provide an overview of the legal framework through which landowners can recover possession and some of the hazards that they need to avoid

Recent protest action has caused the issue of recovering possession of land from protestors and trespassers alike to feature very prominently in the news, most notably in relation to the ‘Occupy London’ movement. The threat and occurrence of trespassers of all forms gives landowners considerable cause for alarm.

2012 could mark the end of 40 years of growth in employees’ rights if the coalition government has its way, warn Richard Kenyon and Angus Ackroyd

In his speech to the Engineering Employers’ Federation on reforming employment relations on 23 November 2011, the business secretary, Vince Cable, stated that ‘The willingness to speak truth to power is more important than it has ever been’. It is a little unclear from the context whether he is the speaker of truth or the holder of power, but the essential message was that the current balance of employment rights is an impediment to economic growth and should therefore be the object of ‘comprehensive review’ and ‘radical reform’.

As the unions gear up for a fight over changes to public sector pensions, David Gallagher and Peter Holt suggest a new strategy for employers to challenge the legality of planned strike action

One of the coalition government’s first moves when it came to power in May 2010, was to commission the Hutton Report on Public Sector Pensions. The Commission was chaired by Lord Hutton of Furness who, as John Hutton, had been one of the Labour government’s secretaries of state for work and pensions.

The EAT has ruled that by not selecting an employee who was on maternity leave for redundancy, an employer disadvantaged her colleague instead, reports Gemma Rusling

The Employment Appeal Tribunal has confirmed that awarding a maximum redundancy selection score for an employee on maternity leave, whose performance over the review period could not be measured due to her absence, constituted unlawful sex discrimination against a male colleague.

The EAT has shed light on what is a fair method for choosing which potentially redundant employee to appoint to a newly created job, reports Jenna Clarke

As advisers, we are all too aware that recent economic uncertainty has resulted in numerous reorganisations and, sadly, redundancies. The latest figures from the Office of National Statistics show that approximately 157,000 people were made redundant in the UK during the July to September quarter of 2010. This was up 14,000 from the previous quarter. The Employment Tribunal Service has seen a correlated increase in redundancy related claims. Claims of unfair dismissal and breach of contract and for redundancy pay rose by 17% from 2008/09 to 2009/10. Given the Conservative-led government’s austerity measures, public sector job cuts and the potential effect on the private sector, such claims only look set to increase further. Now, more than ever, it is important that employers ensure that they follow the correct process when making employees redundant.

Clare Parkinson examines the new single public sector equality duty in light of a recent finding that HMRC’s treatment of a disabled woman was discriminatory

The recent case of Haworth v Cartmel and HMRC [2011] considered a public authority’s obligations under the Disability Discrimination Act 1995 (DDA). It gives a flavour of the potential scope of public bodies’ duties towards disabled people and those with other protected characteristics under s29(6) of the Equality Act 2010. When combined with the new public sector equality duty in s149 of the Equality Act, which comes into force on 6 April 2011, this is a dynamic area for employment lawyers wishing to expand their discrimination law experience beyond cases that are limited to Part 5 (Work) of the Equality Act.