Last updateTue, 24 Feb 2015 5pm

Trowers & Hamlins LLP

Trowers & Hamlins LLP

A recent case contains important guidance on drafting restrictive covenants, applying for springboard injunctions, handing over emails and complying with procedural rules, explain Rebecca McGuirk and Anna Scott

In Capita plc v Darch [2017], Capita applied for an interim injunction against various ex-employees and a competitor company with which they are associated, Archus Ltd. The case contains a useful discussion of both restrictive covenants and interim injunctions. Interestingly, it also discusses whether an employer may claim emails that employees send from its email account are its property (regardless of whether they are about business matters).

Rebecca McGuirk and Anna Scott outline how to carry out a fair dismissal in light of recent case law

Employers dealing with misconduct should always tread with caution. In particular, it is essential they carry out any dismissal fairly in accordance with s98(4) of the Employment Rights Act 1996. This article looks at three recent cases involving misconduct dismissals, which considered various tricky issues such as:

The government is tightening up the tax arrangements that apply when public authorities hire workers through personal service companies, write Rebecca McGuirk and Anna Scott

On 6 April 2017, the current intermediaries legislation (which is also known as IR35) will apply to off-payroll working in the public sector. The changes are contained in the Social Security (Miscellaneous Amendments) Regulations 2017 and reflect legislation that will be inserted into the Income Tax (Earnings and Pensions) Act 2003 (ITEPA) by the Finance Act 2017.

Suzanne Benson and Tom Barton assess the impact of the long-awaited housing white paper

The housing white paper issued on 7 February 2017 led with the challenging title of Fixing our broken housing market. The supporting paper identifies a broad range of challenges and objectives to drive forward additional development, attract more institutional investment into the market and assist individuals with accessing both owner-occupier and rented housing. Many parts of the white paper are designed to start the process of further discussion, and a series of questions and further consultation papers are to follow. Below we have focused on two specific policy areas the white paper seeks to address: the wide-ranging subject of reform of the planning system and the often controversial policy of promoting starter homes.

A recent decision highlights the importance of limiting the scope of mobility clauses to what is reasonable, report Nicola Ihnatowicz and Anna Scott

The Employment Appeal Tribunal (EAT) has considered the use of mobility clauses in redundancy situations in the recent case of Kellogg Brown & Root (UK) Ltd v Fitton and Ewer [2016]. The decision makes it clear that although using a mobility clause may enable an employer to avoid dismissing employees for redundancy, the manner in which it is exercised must be reasonable.

Douglas Rhodes considers the residential landlord’s liability to repair external common parts

The facts of Edwards v Kumarasamy [2016] are common to a vast number of blocks of flats across the country. Mr Kumarasamy was the long leaseholder of a flat within a block, which was accessed by a paved pathway leading to the main entrance door which opened onto a front hallway. Under the terms of the head lease, Mr Kumarasamy was granted an internal demise of the flat and access rights over the common parts. As is standard, the freeholder covenanted to maintain the common parts and Mr Kumarasamy covenanted to pay a service charge towards the maintenance costs. The head lease also contained a provision that the freeholder would not be liable for breach of the maintenance covenants until the leaseholder has given written notice to the freeholder and the freeholder has had a reasonable opportunity to remedy the disrepair.

The Court of Appeal has considered whether two court interpreters could bring discrimination claims despite ostensibly being self-employed. Helen Cookson and Anna Scott report

In a recent decision, the Court of Appeal has emphasised the importance of taking mutuality of obligation into account when determining employment status.

Helen Cookson and Anna Scott analyse the EAT’s decision in the long-running case of Lock v British Gas Trading

In February, the Employment Appeal Tribunal (EAT) handed down its much anticipated judgment in Lock v British Gas Trading Ltd [2016]. It confirmed that the Working Time Regulations 1998 (the regulations) can be interpreted in line with the Working Time Directive (the directive), which requires commission to be taken into account when calculating holiday pay. However, there is still much to be resolved, not least how to determine the issue of calculating reference periods, which will have to wait for another day. Nevertheless, this judgment is an important part of an increasingly complex jigsaw.

Darrell Chiheb reviews a case clarifying the position on break clauses, which reasserts the importance of express over implied terms

The Supreme Court in Marks & Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd [2015] has confirmed the position that rent payable in advance is not apportionable in time, and has also brought some much-needed clarity to the legal test for implied terms.

Rebecca Rees reviews the evaluation of tender pricing

Contracting authorities procuring in the economic downturn have been poorly served by traditional approaches to evaluating price. The return of lowest-price tendering (either as part of a lowest-cost tender or best price-quality tender) has resulted in low prices that enable contracting authorities to demonstrate at the outset that they have obtained good value for taxpayers’ money. However, the downside of this approach can often outweigh the financial savings made, resulting in poorly-performed contracts, disputes and claims as the provider seeks to recoup lost costs or, in extreme cases, provider insolvency. Put bluntly, choosing the wrong financial evaluation tool can cause lasting damage, or even a fatality, to a contractual relationship.

Rebecca McGuirk analyses recent case law on the scope of ‘working time’, including the treatment of travel time, trade union duties, holiday pay and voluntary overtime

The cost of wages and holiday pay looks set to increase following a number of recent court decisions that have expanded the interpretation of working time in employees’ favour. The cases considered time spent travelling to and from the first and last customers of the day, time spent attending trade union meetings, whether holiday pay should include purely voluntary overtime and the carry-over of holiday from one leave year to the next.

Assad Maqbool and Douglas Rhodes analyse an important Upper Tribunal case, which settled longstanding uncertainty over how to consult with leaseholders when procuring works under framework agreements

On the face of it, Royal Borough of Kensington and Chelsea v the Lessees of 1-124 Pond House [2015] (the RBKC case) concerned a relatively straightforward application by the Royal Borough of Kensington and Chelsea (RBKC) under s27A(3) of the Landlord and Tenant Act 1985 (LTA 1985) for determination of the liability of certain lessees to pay residential service charges. However, the case is notable for the following reasons:

An employment tribunal has recently determined that it is necessary to add words into the Working Time Regulations 1998 to resolve a conflict over holiday pay in EU and domestic law. Rebecca McGuirk discusses the case

The cost of paid holiday is set to increase for employers following recent court decisions on what components of pay are to be included. The courts in a number of cases have looked at the issue of holiday pay and have ruled that it cannot be based on basic salary but rather must correspond to ‘normal remuneration’. If such items as commission and non-guaranteed payments are not taken into account then workers will be financially disadvantaged when taking holiday, as they will not earn such payments during the holiday period. In addition, workers may be reluctant to take the leave due to the drop in salary, which would be contrary to the Working Time Directive’s purpose.

William Bethune and Gillian Palmer consider a Court of Appeal case that has held that only tenants of single blocks can exercise the right to manage under the Commonhold and Leasehold Reform Act 2002

The Court of Appeal’s decision in Triplerose Ltd v Ninety Broomfield Road RTM Co Ltd [2015] has, at least for the time being, ended the debate on the extent of tenants’ autonomy under the Right to Manage (RTM) regime under Part 2 of the Commonhold and Leasehold Reform Act 2002 (CLRA), which intended to allow long leaseholders to step into the shoes of their landlords when they exercise the RTM.

Douglas Rhodes reports on landlords’ options for the recovery of legal costs in residential service charge disputes at the First-tier Tribunal

The Leasehold Valuation Tribunal (LVT), whose functions were in 2013 transferred to the First-tier Tribunal (Property Chamber) (FTT), was originally set up as a less formal, low-cost alternative to the courts for resolving certain types of property disputes. In its current guise as the FTT, service charge disputes heard by the tribunal can involve large amounts of service charges, and the legal costs of preparing and presenting a case before the FTT can be substantial.

Helen Cookson analyses a recent EAT case concerning dismissal for misuse of public funds

With the general election campaigns in full swing, politicians’ accountability over public funds and spending is a particularly pertinent issue. Local authorities and schools must spend public money in the most efficient way and, significantly, not be seen to be wasting funds. The question raised in Anderson v Chesterfield High School [2015] was whether a local authority was entitled to dismiss an elected executive mayor who was in paid employment at a state school despite providing no services to that school. The local authority argued that:

Helen Randall discusses the legalities of including ethical and social policy objectives within procurement and outsourcing

The power of consumers to influence the behaviours and outcomes of business is growing. This can be inferred from the increased market share for products claiming to be sustainably or ethically sourced or produced.

The EAT has recently considered whether an employee was protected from discrimination on the grounds of his socialist beliefs. Rebecca McGuirk analyses the case

With the general election rapidly approaching and the increasing popularity of the non-mainstream parties such as Ukip, the BNP and the Green Party, the issues surrounding employees’ political preferences have never been so pertinent. Individuals’ political beliefs may vary dramatically, so the question has been raised whether such beliefs are protected from workplace discrimination and harassment as a philosophical belief under the Equality Act 2010 (EqA). This was one of the issues the Employment Appeal Tribunal (EAT) had to adjudicate on in the recent case of The GMB Union v Henderson [2015].

Rebecca Rees and Lucy Doran explore the Fastweb case and the repercussions for contracting authorities

A European procurement case published in 2014 has whipped away the fig leaf that voluntary transparency notices (VTNs) potentially provided to contracting authorities worried about their contracts being declared ineffective.

Sheffield v Sheffield clarifies liability for historic breaches of trust. Douglas Rhodes explains

At its core, the facts of Sheffield v Sheffield [2014] are not uncommon. A trust set up for tax planning purposes was not operated according to its terms and, several years later, the beneficiary of the trust claimed – ultimately successfully – an account of the income to which he was entitled. However, along the way the case raised novel issues concerning, among other things, sham trust arrangements, sub-trusts, estoppel, laches/acquiescence and the effect of deliberate concealment on the limitation of actions. In addition, the case is a salutary reminder of the central importance of documentary evidence in disputes which concern events that took place many years ago. This article considers only the most notable points raised for practitioners.

Douglas Rhodes reviews the Court of Appeal’s decision in Phillips v Francis regarding the extent of a landlord’s obligation to consult its tenants on major works

Service charge consultation can represent a minefield for landlords and an opportunity for tenants. Phillips v Francis [2014] is the latest case which (following the intervention of the Court of Appeal) has made the obstacles of consultation slightly easier for landlords to navigate.

Richie Alder and Anna Scott examine the advocate general’s controversial Opinion in Kaltoft

Obesity and whether or not it amounts to a disability has been grabbing the headlines recently following the advocate general’s Opinion in FOA, acting on behalf of Karsten Kaltoft v Billund Kommune [2014]. While the advocate general has found that ‘extreme, severe or morbid’ obesity may be a disability if it has reached such a degree that it plainly hinders participation in professional life, the question still has no definitive answer.

Helen Randall assesses the efficacy and objectives of Directive 2014/24

The new European public procurement directive (Directive 2014/24) has been billed as bringing more speed, flexibility and efficiency. Here we examine some of the main changes introduced by the new directive (replacing Directive 2004/18) and consider whether it will indeed achieve those objectives or, in some instances, lead to more rigidity and ambiguity.

Richie Alder and Anna Scott consider the impact of Allen v Morrisons Facilities Services and of the new pre-transfer consultation regime

Can employees bring a direct claim against an employer to which they have transferred (the transferee) for failure to provide information to their previous employer (the transferor)? This was the issue which the Employment Appeal Tribunal (EAT) had to determine in the recent case of Allen v Morrisons Facilities Services Ltd [2014]. The tribunal had held that it was bound by an unreported EAT decision (Mitie Group v Mullineaux [2005]) to hold that the claim must be made against the transferor. However, it said that, free from authority, it would have decided that a claim could be brought against the transferee. This was on the basis that, where the transferor has passed on the limited information given by the transferee, but the transferee fails to pass on full information, ‘the former employees of the transferor have no redress’.

Douglas Rhodes considers the wide-ranging implications for property developers of the Supreme Court’s decision in Coventry v Lawrence

Courts take property rights seriously. If you breach another person’s property rights, you do so at your own risk. None of this has changed, but the recent Supreme Court decision of Coventry v Lawrence [2014] is a turning point in the evolution of the law on injunctions, the ramifications of which will take some time to be fully worked through.

Helen Cookson examines a recent Court of Appeal decision on the harmonisation of employees’ terms and conditions after a business transfer

What do you remember of 1985? Were you even born? It seems a long way off now – the year the first mobile phone call was made in the UK. It was also the year that the Court of Appeal gave its judgment in Berriman v Delabole Slate Ltd [1985]. The mobile phones may be smaller, but Berriman continues to shape the application of the UK’s legislation protecting employees on the transfer of an undertaking.

Helen Cookson and Anna Scott review recent UK and European decisions on age equality

Age discrimination is a key issue for employers at the moment. It has been the subject of a number of recent decisions dealing with the justification of direct age discrimination in the context of enhanced redundancy payments, pension contributions, pay protection schemes and permanent health insurance (PHI) benefits. This article considers recent case law and asks if there is a trend for employers to be able to rely on cost to justify age discrimination, an argument traditionally rejected in relation to other protected characteristics.

Emma Burrows and Anna Scott discuss two opposing Advocate Generals’ opinions on whether surrogate mothers are entitled to paid maternity or adoption leave

There is nothing in domestic or European legislation which provides that a woman who becomes a mother by way of a surrogacy arrangement should be entitled to benefit from the rights given to pregnant women. The issue, which has not previously had to be determined, has now been considered by two different Advocates General in two separate cases, with two completely different outcomes.

The ECJ has finally put an end to uncertainty about whether transferred employees can benefit from ongoing changes to historic collective agreements, write Emma Burrows and Anna Scott

It has been unclear for some time now whether collective agreements transfer under TUPE (the Transfer of Undertakings (Protection of Employment) Regulations 2006). Essentially, it will depend on whether such agreements have been incorporated into individual employees’ contracts. Assuming that they have been, the key question which arises in the context of a TUPE transfer is whether the employee will be able to benefit from ongoing changes under the agreement post-transfer. In other words, do those changes have a ‘dynamic effect’, meaning that the transferee is bound to accept terms contained in collective agreements entered into after the transfer, or a ‘static effect’, meaning that post-transfer changes to collective agreements will not apply.

Rebecca McGuirk discusses whether government funding schemes designed to encourage young people into work are unfair to people in other age brackets

Apprenticeships have been around since the middle ages but in recent years there has been a resurgence in their use. This has been predominantly due to the government (past and present) launching a number of initiatives that have given employers incentives. One such scheme is the Apprenticeship Grant for Employers (AGE) 16 to 24.

Laurence Target considers the devices used to ensure that a seller benefits from any future increases in the value of its land

A seller of land may want to get a part of some future enhanced value after he has sold the land, and there may be good reasons for this. The possibility of future development at the time of sale may be obscure, not something that can have a sensible price put on it at the time of the sale. A buyer may well agree, and depending on how things turn out, he may get such an increase in value that he will be happy to share some of it with the seller. Even where increased land value seems to be a remote possibility, circumstances can change, unexpected planning permission may be forthcoming, and land values can be transformed.

In Smith v Jafton Properties the court considered whether four self-contained flats used for short-term residential serviced accommodation were ‘flats’ and ‘occupied for residential purposes’. Leigh Shapiro investigates.

Hot on the heels of the ‘what is a house?’ debate considered last year by the Supreme Court the different but related question of ‘what is a flat?’ has fallen to be considered by the courts in the case of Smith v Jafton Properties [2011].

Rachel Kerr advises developers and property owners to ‘be prepared’ when planning redevelopment or refurbishment works

The construction activity index is at the highest level since January 2008, with non-residential activity showing the greatest rise. The number of redevelopment and refurbishment projects is increasing, as developers and property owners use the continued lull in the market to prepare properties, ready to catch the upturn when it comes.

Richie Alder and Anna Scott summarise imminent changes intended to scale back the process for vetting staff who work with children and at-risk adults

Various changes to employers’ pre-employment checks will be implemented by the Protection of Freedoms Act 2012 (PFA 2012). As of 10 September, the PFA 2012 will usher in changes to the current Criminal Records Bureau (CRB) check regime, as well as to the provisions governing ‘regulated activity’ under the Safeguarding Vulnerable Groups Act 2006 (SVGA 2006).

Nicholas Levy considers the evolution of the law on administrations and where we are now

The controversy surrounding administrations (and particularly pre-pack administrations) continues. The British Property Federation and Association of British Insurers weighed into the debate on 20 April, with calls for reform of the rules under which insolvency practitioners operate and greater transparency regarding their dealings with buyers of distressed companies. However, with current government policy favouring less, rather than more regulation, the watchwords for landlords are ‘self-help’ and vigilance. Two recent cases have brought all of this into sharp focus: Goldacre (Offices) v Nortel Networks UK Ltd [2009] and Leisure (Norwich) II Ltd v Luminar Lava Ignite Ltd [2012].

Fixed-term employment can be a useful tool in an outsourcing situation but there are dangers when such contracts come up for renewal, writes Nicola Ihnatowicz

With employers in all sectors under pressure to achieve the maximum efficiencies and best value from their workforce, flexible employment practices are becoming increasingly popular. Fixed-term employment is hardly a new invention and is often used as a quick fix for employers whose funding streams are unpredictable, whether because of market conditions or, for example, dependence on a third-party regulator or funder. But are fixed-term contracts really that easy to use? In particular, what happens when employees on fixed-term contracts are subject to a transfer under TUPE (the Transfer of Undertakings (Protection of Employment) Regulations 2006)? Is it acceptable to employ staff on fixed-term contracts, or not to renew such contracts, because the employer knows there will be a transfer in the future? The political drivers for more services to be outsourced from the public sector has left contracting authorities and service providers grappling with these issues as they try and find ever more efficient ways to provide services with decreasing financial resources.

A recent case brings the focus back to facts and evidence, finds Robert Horne

An issue that raises its head in many projects, be they construction related or not, is the completion of the project to the timetable originally agreed. The more complex the project, the more difficult it can become to manage the process. If control of the project is lost it will be difficult to establish what went wrong and whose fault it was.

Nicola Ihnatowicz discusses whether public service employees’ pay and conditions will deteriorate following the removal of guidelines on central and local government outsourcing

On 13 December 2010, the Cabinet Office announced the withdrawal of the provisions commonly known as the Two-Tier Code as they applied to central government contracts. Shortly afterwards, on 21 March 2011, the secretary of state for communities and local government announced the withdrawal of the equivalent provisions for local government.