Member News

The Court of Appeal has handed down its judgment in the case of NHS Leeds v Larner, dealing with the issue of carrying forward accrued holiday entitlement during sick leave. Professional Support lawyer, Elizabeth Stevens, reports.

In this case, the Employment Appeal Tribunal (EAT) had ruled that an employee who was dismissed after a long period of sickness absence was entitled to be paid in lieu of all her accrued holiday. The EAT was satisfied that she was entitled to be paid in lieu of the full amount, including in respect of the previous holiday year, even though she had not made any request to carry the leave forward (see our previous briefing).

Following this decision, the case of Fraser v Southwest London St George’s Mental Health Trust was heard by a different division of the EAT, which concluded that in order to be entitled to carry the leave forward to a subsequent holiday year, the employee must expressly request to take the leave (see our previous briefing).

As a consequence of these two EAT decisions we had conflicting authorities on the issue. The case of NHS Leeds v Larner was then appealed to the Court of Appeal and was heard on 27 March 2012. The decisions was handed down on 25 July 2012.

The Court of Appeal has upheld the EAT decision, meaning that a worker who has been on long-term sick leave can claim a payment in lieu of his or her accrued holiday entitlement in full, regardless of whether they made any request either to take the leave or to carry the leave forward to the next holiday year.

In handing down its judgment, the Court reviewed the numerous European decisions on the issue of statutory holiday entitlement during sickness absence under the provisions of the Working Time Directive (WTD). The Court was satisfied that Article 7 of the WTD, which provides the right to paid annual leave, does not impose any requirement for the worker to make a prior leave request in order for the holiday entitlement to be carried forward to a subsequent holiday year.

Crucially for private sector employers, the Court also ruled that it was possible for the Working Time Regulations 1998 to be interpreted in light of the European rulings on Article 7 WTD. This means that employees working in the private sector, as well as those in the public sector, can rely on these European decisions to pursue a claim for any unpaid holiday entitlement on termination of their employment.

Comment This decision means that, subject to any further appeal to the Supreme Court, employers will now have very little scope for refusing to pay employees in respect of their accrued holiday, if their employment is terminated following a long period of illness.

The Government is due to be issuing draft amendments to the current Working Time Regulations in order to take account of the European decisions on the issue of annual leave entitlement and sickness absence.

A copy of the Court of Appeal judgment is available here

From 6 April 2013, a new statutory test will replace the existing rules fordetermining if you are UK resident. While the test will provide clarity, it isimportant to understand it now so that you can plan ahead.

Take a look at our detailed flyer, which includes the test to see if it will affect you.

The firm’s Franchising Team recently enjoyed an evening’s sail on White Moth, a Norfolk Wherry Yacht. Wherries were originally trading vessels which used to sail the Norfolk Broads. Subsequently, some were developed to carry passengers and the Wherry Yachts were built as pleasure yachts early in the last century.

Jonathan Chadd, partner in the Franchising and Intellectual Property Team, advised on the purchase of White Moth by Andrew Scull. Mr Scull generously loans White Moth to the Wherry Yacht Charter Charitable Trust (WYCCT) so that she can be enjoyed by others. At the kind invitation of owner Andrew Scull and under the steady hand of skipper Peter Bower and his dog Sam the Team enjoyed a marvellous sail in perfect weather out from the Trust’s base in Wroxham and on to Wroxham Broad. Leathes Prior is proud to support the restoration and preservation work carried out to White Moth and other Norfolk Wherries. For more information about the WYCCT including the work it carries out and details of the yachts available for private charter, please visit: www.wherryyachtcharter.org

The Franchising team works closely with other departments within the firm to be one of very few firms which is able to offer the full complement of legal services to its franchising clients. 9 members of the firm, including members of the employment, commercial property, intellectual property, debt collection and dispute resolution teams accompanied the Franchising team on the trip. Jonathan Chadd thanked colleagues for their continual support of the Franchising team:

“The Franchise Team just wanted to thank all of you for your assistance to us and hope you enjoyed it.” Vicki Mitman, added: “It is great to have the assistance of other specialist teams within the firm as they ensure we are able to offer a comprehensive and competitive service.”

Lee is a FA and FIFA Licensed Football Agent, and joins Leathes Prior to work in Dan Chapman’s Sports Team, which trades under the style Full Contact (see www.fullcontactlaw.co.uk).

Lee will head up Full Contact’s player representation and agency division, acting for football players throughout the UK, Europe and beyond.

Lee brings vast experience as both a professional footballer and an agent and he will work closely with his legal, commercial and mentoring colleagues within Full Contact and Leathes Prior to allow us to offer players a service which truly is second to none.

Lee, whose background is steeped in football (his father was a football manager), decided to become a football agent once his playing career ending prematurely due to injury, and over many years he successfully built up an impressive roster of clients.

Adam Blenkinsop and Katy Kidd report on Lambeth Council’s recent success in obtaining injunctions against unlicensed ice cream traders in London’s South Bank, and outline the legal framework for local authorities bringing such actions.

Click here to view the article in full published by Local Government Lawyer.

Steeles Law Associate Jean Parkinson and Trainee Solicitor Laura Tanguay discuss the new Private Member’s Bill on littering.

A new Private Member’s Bill on roadside littering was heard in the House of Lords last week. The aim of the Bill is to ‘close the loophole’ in the existing provisions and enable councils to hold someone accountable when litter is thrown from a vehicle.

At present, it is a criminal offence under sections 87 and 88 of the Environmental Protection Act (EPA) 1990 (as amended by the Clean Neighbourhoods and Environment Act (CNEA) 2005 which includes within the definition of ‘litter’ smoking related litter and chewing gum) to throw litter from a vehicle. Those found guilty of the offence can receive an £80 fixed penalty fine from the council, or a maximum fine of £2,500 for more serious offences tried in the Magistrates Court.

There is, however, a serious evidential difficultly in proving which particular person in the car was responsible for throwing the litter, and consequently, these provisions are rather ineffective in practice.

Because of this, the London Local Authorities Act 2012 was enacted this year to enable councils in Greater London to issue civil penalties for littering to the registered owner of the vehicle, thereby removing the evidential burden of the existing criminal provisions. The penalties operate in the same way that speeding fines, seat belt, and parking offences do, with the owner of the vehicle automatically liable but able to nominate the guilty individual to bear the penalty.

The proposed new Bill seeks to extend this civil penalty to local authorities across England, allowing those councils outside of London to benefit from the provisions, thereby removing the current anomaly and rounding the legislative circle.

The new Bill has the support of CPRE (Campaign to Protect Rural England), with CPRE Stop the Drop Campaign Manager, Samantha Harding, stating, “if people think they can toss litter from their cars, councils should have an effective way to fine them and that’s what this bill delivers.”

Clearly, littering is of widespread concern, not only because of the associated harm to our countryside and wildlife, but also because of the huge cost implications to Local Authorities in removing the rubbish from our streets. Green Flag reports that the cost to taxpayers of clearing up litter on the roadside is £850 million a year. Similarly, Keep Britain Tidy estimates that over 30 million tonnes of litter are collected from our streets every year at a cost of £885 million per year.

For further information on this topic, please contact Jean Parkinson on 020 7421 1720 or jparkinson@steeleslaw.co.uk.

The Employment Appeal Tribunal (EAT) has recently considered whether it was fair to dismiss two employees for taking preliminary steps towards setting up in competition with their employer. Employment Principal Lorna Townsend reports.

Following hot on the heels from the decision of the Court of Appeal in Ranson v Customer Systems plc (see our previous briefing), in which an employee who set up in business with his employer was held not to be in breach of his contract of employment, the EAT has considered the dismissal of two employees who had taken preliminary steps towards setting up in competition with their employer.

The two employees in this case, K and H, had put together a detailed business plan for the purpose of seeking investment in their own company, which would be competing with their employer’s business of operating residential care homes for children.

Both employees were suspended and then dismissed for gross misconduct following separate disciplinary hearings. The misconduct was described as a breach of the “fundamental trust and confidence” essential to the employment relationship. The employer relied in particular on the fact that K and H had used company resources, including information on costings, in the preparation of their business plan.

The employees’ claims for unfair dismissal were rejected by the employment tribunal, which concluded that dismissal was within the range of reasonable responses open to the employer, following a reasonable investigation.

The EAT upheld the employees’ appeal and remitted the case to be reheard by the tribunal. The EAT was not satisfied that the information used by the claimants in the preparation of their business plan could necessarily be categorised as ‘confidential information’, the unauthorised use of which would amount to a fundamental breach of contract. The tribunal had not fully considered the question of whether the employees were acting in breach of their contract of employment by using company information in the preparation of their business plan.

Comment

The EAT in this case has provided a useful reminder that whilst employers have a considerable freedom to define what they will treat as gross misconduct, it is not in itself gross misconduct for an employee to make preparations for conducting a future business after his employment with his current employer has terminated. It is likewise not necessarily the case that every piece of information the employer has, and that the employee may be aware of, can properly be regarded as ‘confidential information’ within the strict legal meaning of the term.

Employers should exercise caution before terminating an employee’s employment in this situation. It would be prudent for employers to make sure that employment contracts and policies make the employee’s duty of confidentiality, and the consequences of breaching that duty, very clear.

A copy of the EAT judgment is available here

Steeles Law Head of Planning & Environment David Merson previously reported on Coalition proposals to revise the planning system and in particular proposals to amend the Use Classes Order. He now looks at Communities Secretary Eric Pickles’ announcement today highlighting the proposals to remove restrictions on temporary use of empty high street shops.

Temporary or so called ‘pop-up’ shops often use empty high street shop premises until a permanent tenant can be found.

The time and cost associated with securing the necessary consent required to comply with any planning rules controlling what type of business a shop can be used for can often make the difference between the venture ever getting off the ground or not. In addition, empty high street shops give rise to many problems: lost revenues, blight, economic stagnation and anti-social behavior.

It is now proposed that Landlords would be free to temporarily change the use of an empty shop for two years where the use would be low impact which the Coalition believes can help reinvigorate the high street. Appropriate temporary uses changes are though likely to be within use classes A1 (e.g. retail shops, hairdressers, post offices), A2 (e.g. banks, betting shops, employment agencies), A3 (e.g. restaurants and cafes) and B1 (offices).

Details of the consultation exercise can be found here. The consultation period runs for ten weeks from the date of publication on 3 July 2012 and end on 11 September 2012.

If you require further information or advice on any issues raised in this article or any other planning & environmental matter please contact David Merson on 020 7421 1720 or dmerson@steeleslaw.co.uk

New routes and more choice for sun seekers from Norwich International Airport

Thomson and First Choice are pleased to announce that for Summer 2013 they will be doubling capacity at Norwich International Airport through the introduction of three brand new routes to Dalaman in Turkey, Enfidha in Tunisia and Tenerife – as well as the addition of another weekly flight for existing route Palma.

The move to introduce these routes is part of the UK’s largest tour operator’s strategy to ensure customers across the UK can fly from their local airport and stay at the best hotels in some of the most exciting destinations.

Not only will customers from East Anglia now be able to visit new destinations, they will also have the opportunity to choose varying durations – not just the standard seven and 14 night stays. The changes also mean that Thomson and First Choice customers will now be able to fly to Palma and sail on the Thomson Dream cruise ship visiting a number of ports across the Mediterranean. An increase in capacity on the existing Norwich to Corfu route will also see a further 50 seats a week available to local customers.

Local Norfolk, Suffolk and Cambridgeshire customers will now have access to some of Thomson and First Choice’s most highly scoring flagship hotels including; the five star Sensatori Tenerife, which gives customers a luxury holiday experience, featuring world class spas and gourmet dining; and the Holiday Village Tunisia which delivers everything a family could want in one place – great entertainment, food, kids clubs and lots of activities to keep the whole family occupied.

Paul Cooper, Airport Negotiations Manager for Thomson and First Choice, said of the move:

“Doubling capacity demonstrates our continued commitment to the region and Norwich International Airport, which has always been a popular departure point for our customers. The increase in capacity comes as a direct result of customer feedback – our customers want to fly from their local airport.

“Modernising our operations across the UK is a key part of our overall strategy and this move is definitely a step in the right direction towards creating an enhanced holiday experience for our customers.”

Andrew Bell, the airport’s Chief Executive, said:

“We are delighted that Thomson and First Choice have announced these fantastic new destinations and increased the frequency on two of our most popular holiday flights. This decision demonstrates their commitment to the airport and reflects the high level of demand from customers wishing to fly from Norwich.

“An easy, hassle free start to a holiday cannot be under estimated. With short journey times to the airport compared to London airports, on-site secure car parking next to the terminal, a friendly welcome when you arrive, efficient check-in and security procedures and no endless corridors to navigate with your bags, Norwich International Airport puts some of the pleasure back into flying.”

Bigfork have just launched a new website for Flooring Supplies Anglia, the regions leading flooring products distributor. Using our strategic approach to website design we produced a digital marketing plan which included a website content plan, search engine optimisation and a broadly appealing, easy to use design. The new website is supported by our Content Management System which allows FSA to manage all content inhouse. See the new site at www.flooringsuppliesanglia.co.uk

A new set of Employment Tribunal Rules of Procedure has been published, following a fundamental review carried out by Mr Justice Underhill. Professional Support Lawyer Elizabeth Stevens looks at the main changes.

In November 2011, Mr Justice Underhill (former president of the Employment Appeal Tribunal), was asked by the Government to conduct a fundamental review of the existing Employment Tribunal Rules of Procedure. This review has now been completed and a new set of draft Rules has been published, which will be the subject of a formal consultation later this year.

The new draft Rules are intended to be more straightforward and easier to understand, particularly for unrepresented parties. They are written in simpler language and are less than half the length of the existing Rules.

Some of the key proposed changes are as follows:

• Introducing a new ‘sift’ process at an early stage of the claim, aimed at identifying weak cases and dismissing them without a full hearing if they are regarded as having no reasonable prospects of success;

• Combining the existing separate case management discussions and pre-hearing reviews into ‘preliminary hearings’;

• Requiring tribunals to give reasons for all decisions on disputed issues;

• Allowing tribunals to set strict timetables for oral evidence and submissions;

• Simplifying the rules relating to default judgments;

• There will be no change to the substantive criteria for the award of costs or making deposit orders, but the new Rules will remove the current cap of £20,000, above which costs awards must be referred to the county court for assessment (meaning that tribunals will be able to assess costs above that limit themselves).

There will also be new versions of the prescribed claim (ET1) and response (ET3) forms, which will also be subject to consultation later this year.

A copy of the new draft Rules is available here

Employment Team win Tribunal for Golf Club

Leathes Prior’s Employment Team successfully represented Sheringham Golf Club at an Employment Tribunal this week.

Faced with high value claims for alleged disability discrimination brought by a former Club Secretary/Manager, claims always strenuously denied by the Club, Dan Chapman (Head of the Employment Team) represented the Club during the course of three days before Bury St Edmunds Tribunal. All claims were unanimously dismissed.

The litigation was complex and lasted for almost two years, and the outcome thus comes as a huge relief – not to mention vindication – for the Club. Dan commented; “We are delighted for the Club, and particularly those committee members and officials who have had to give evidence in these proceedings and give up so much of their time helping me and my team defend these claims. Without their support and endeavour, we would not have been able to deliver the successful outcome which was not only essential for the future of the Club, but absolutely just in the circumstances.”