Employment Tribunal Fees Ruled as Unlawful

On 26 July 2017, the Supreme Court unanimously upheld an appeal by UNISON that tribunal fees, introduced by the UK government in 2013, are unlawful under UK and EU law. The ruling, described as “momentous”, has led to the existing fees regime being quashed.

UNISON’s claim, first issued in 2013, was that employment tribunal fees prevented employees on low incomes and those facing discrimination from accessing justice. Judgments from the High Court in 2013 and the Court of Appeal in 2015 both ruled in favour of the Government.

From July 2013, tribunal claims were classified as type A or type B based on how long the claim would take to be resolved. A single claimant filing a type A claim required to pay fees of £390. Type B claims attracted fees of £1200.

In practical terms, the decision of the Supreme Court means:

  • Fees are no longer payable for Employment Tribunal or Employment Appeal Tribunal claims.
  • Fees paid since 2013 are likely to be repayable by the Government – this will include cases where unsuccessful employers have been ordered to pay employee’s costs.

The President of the Law Society of England & Wales, Joe Egan, described the decision as “a triumph for access to justice, and a resounding blow against attempts to treat justice as a commodity rather than the right it is.” Egan added the decision of the Court supported the views of many that “the hike in tribunal fees… would deny people the chance to uphold their basic rights at work. Today the Supreme Court has vindicated that view and restored access to justice for those mistreated in the workplace.”

The judgement itself points towards a new regime with fees being set at a lower level or a more generous system of remission but this will require legislation so will take time. Another potential consequence is that time-barred claims may now be submitted on the basis that the unlawful fee regime deterred employees from submitting claims in time.

If you are an employer or employee facing difficulties in the workplace, please contact Paul Neilly or Hugh Grant by telephone (0141 552 3422) or email (pdn@mitchells-roberton.co.uk or hjg@mitchells-roberton.co.uk).

Dementia and the World of the Arts

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I recently read a very moving and interesting article in The Observer of 16/7/2017 by Nicci Gerrard called “Say it with a picture or a song”. It resonated with me for certain  reasons, primarily because of the work we do here with adults with incapacity and our involvement with Project Ability Glasgow, an art project creating opportunities for people with disabilities and mental health issues.

As Nicci Gerrard explains “A few weeks ago turning on the radio, I hear a voice saying that creative writing can help wounds heal faster. Startled I turn the volume up. Volunteers were given small wounds; half were then asked to write about something distressing in their life, the other half about something mundane. The wounds of the confessional writers healed substantially more quickly. A thought or a feeling is felt on the skin. Our minds, which have the power over our bodies, are in our bodies and are our bodies: we cannot separate the two. Words, self expression, can tangibly help pain and suffering. Art can be medicine for body and soul”- potent words indeed.

An all party parliamentary group inquiry into the arts, health and well being has been gathering evidence over the last two years and has come to the unambiguous conclusion that the arts used appropriately by health professionals can help with some major social challenges of an aging population, long-term illness, loneliness and mental health ,saving money in the health service. As Lord Howarth of Newport co-chair of the all party group said “The arts have a vital role to play for people with dementia. Research demonstrates that visual arts, music, dance, digital creativity and other cultural activities can help to delay the onset of dementia and diminish its severity. This not only makes a huge difference to many individuals but also leads to cost savings. If the onset of Alzheimer’s disease ( which accounts for 62% of dementias) could be delayed by five years, savings between 2020 and 2035 are estimated at £100bn. Those are powerful statistics, but this isn’t just about money; the arts can play a powerful role in improving the quality of life for people with dementia and for their carers”.

There are projects the length and breadth of the country in theatres, galleries, community centres hospitals and care homes. As Nicci Gerrard describes” I attended one of the monthly sessions at the Royal Academy in London where people who have been art- lovers through their life- and are art-lovers still come to talk about a particular work, led by two practicing artists. We sat in front of an enigmatic painting by John Singer Sargent and there was an air of calmness, patience and above all time and there were no wrong opinions. There are many ways of seeing. People with dementia are continually contradicted and corrected, their versions of reality denied: it’s Sunday not Friday; you’ve already eaten your breakfast; I’m your wife not your mother; anyway you are old and she is dead….In this humanising democratic space, people were encouraged to see, feel, remember and express themselves. Slowly at first they began to talk. There was a sense of language returning and of thoughts feeding off each other. They were listened to with respect and were validated.”

Nicci Gerrard also mentions in her article the film “Alive Inside”. It is a documentary which follows social worker Dan Cohen founder of the non-profit making organisation Music & Memory as he fights against a broken health care system to demonstrate music’s ability to combat memory loss and restore a deep sense of self to those suffering from it. Nicci Gerrard points to an emotive example “an old man with advanced dementia sits slumped in a wheelchair. He drools; his eyes are half closed and it’s impossible to know if he is asleep or awake. A few times a day, soft food is pushed into his mouth. Then someone puts earphones on his head and suddenly the music that he loved when he was a strong young man is pouring into him. His eyes open and knowledge comes into them. His toothless mouth splits into a beatific grin. And now he is dancing in his chair, swaying. And then this man –who doesn’t speak any longer –is actually singing. The music has reached him, found him, gladdened him and brought him back to life.”  The arts creating a miracle of which there should be more as we realise the wonderful benefits of the artistic world.

To find out more about Project Ability, please visit http://www.project-ability.co.uk/

Is Body Art a Workplace Issue?

Recent research by Acas and Kings College, which explored employer perceptions on staff appearance at work found that visible body modifications such as piercings or tattoos are still likely to be frowned upon in certain areas of the service sector with some employers being worried that potential customers may be put off.

Certainly tattoos used to be considered part of a counterculture but today they have gained wider social acceptance – more and more people, men and women alike, have them and it is understood that a third of young people in the UK have tattoos.

So companies could be missing out on talented staff due to their outdated attitudes towards people who have a tattoo Acas states. They are urging firms to change their attitudes and relax their dress codes. Stephen Williams, Acas Head of Equality commented that “Businesses are perfectly within their right to have rules around appearance at work but these rules should be based on the law as appropriate and the needs of the business, not managers’ personal preferences.”

He further added that “While it remains a legitimate business decision, a dress code that restricts people with tattoos might mean companies are missing out on talented workers.”

But what I would ask is whether having a tattoo or not has any relevance on the individual’s ability to do their job?  Could there be legitimate resentment from employees with tattoos who may be judged purely upon their appearance rather than on the skills and attributes which they could bring to the business?

In an interview with the Sunday Times Margaret Mountford, the former right- hand woman of Lord Sugar recently warned that tattoos were a real problem for British young people, seriously decreasing their chances of getting a job. Indeed last year Charlotte Tumilty a trainee teacher was sent home on her first day of work at a Catholic School when staff objected to her tattoos.  Her case prompted debate about whether anti-tattoo discrimination should be made illegal. At the moment under UK law workers have no protection under discrimination legislation for having a tattoo.

So what would I suggest to an employer :

  1. Please keep an open mind- just because someone has a tattoo do not discount them without taking a proper look at their skills. If a candidate has got to interview stage then you must have seen something in their CV.
  2. Outline clear policies on what is and isn’t allowed and let staff know how these decisions have been reached.
  3. Talk to employees about their body art as open communication is the best way forward.

Embracing your workforce whether they are tattooed or not could lead to a more relaxed  atmosphere and  increase productivity levels.

At Mitchells Roberton we have staff with tattoos and I am one of them.

If you would like to discuss any employment law matter, please contact Hugh Grant (hjg@mitchells-roberton.co.uk) or Paul Neilly (pdn@mitchells-roberton.co.uk) or telephone 0141 552 3422. http://www.mitchells-roberton.co.uk

A Recent Study Predicts Greater Demand for Inheritance Tax Advice

Prudential have carried out new research showing that financial advisers are forecasting a sharp rise in demand for Inheritance Tax advice. It was found that 7 out of 10 advisers interviewed expect demand for IHT planning to grow over the next 12 months. However 17% of advisers feel that due to regulatory changes, they are not sufficiently confident in advising on IHT issues and are looking to develop links with legal firms.

The study shows that part of the increase in demand for IHT is due to the new IHT rules that came into effect in April this year. These rules are complex and comprise an additional £100,000 per person residence nil-rate band. This limit will increase each year and complements the standard nil rate band to provide a potential £1million IHT allowance for a couple in 2020/21

Increased access to pension savings as a result of Pension Freedoms and the ability to leave pension wealth to family as well as rising property prices are other major factors.

Paul Harrison, Head of Business Consultancy at Prudential commented “Rising property and pension wealth are making it increasingly important for advisers to be able to help clients with specialist advice on IHT planning and demand for advice is booming.”

“One specialist area that is driving demand for IHT advice is enquiries about using trusts”

If you would like advice on inheritance tax planning then please contact a member of our Private Client Department who will be happy to help you. Please find out more at http://www.mitchells-roberton.co.uk

A Recent Report Gives Insight into Housing Market Activity in Scotland

Registers of Scotland have released a new report which gives an interesting insight into property market trends over the past ten years. It reveals that the total value of the residential sales market in Scotland from 2007-08 to 2016-17 reached over £143.4 billion.

“The Scottish property market is a significant component of the Scottish economy” explained RoS business development and information director Kenny Crawford. “In 2016-17 the total value of residential sales alone was £16.7 billion, an increase of 1.0% compared with 2015-16”

Mr Crawford further states that “We’ve also seen an increase in average house prices over the decade, up 7.7% when comparing 2016-17 with 2007-08.”

“Overall house prices remained relatively stable across each year of the decade, with the exception of a more pronounced year on year increase between 2013-14 and 2014-15.

Other report findings include:

  • New-build property sales accounted for 12% of the all Scotland sales in 2016-17 with a total of 12,014 sales
  • There was a 36.2% decrease in the number of residential properties sold for over a million pounds when comparing 2007-08 with2016-17 although this should be seen in the context of a drop of 32.8% in total sales volumes between these years.
  • A drop of 30.3% in the number of sales being registered with a mortgage when comparing 2007-08 with 2016-17
  • A market value of £4.1 billion for non residential sales in 2016-17
  • A 5.3% increase in the volume of commercial leases from 905 in 2015-16 to 953 in 2016-17

Latest data from Halifax shows that there has been a 3% fall in property sales between March and April 2017 to 99,910. This followed three successive months when sales were above 100,000.

According to the Halifax supply continues to be an issue for the housing market. The number of properties coming on to the market fell for the 14th consecutive month in April which kept the average stock levels on estate agent’s books close to a historic low.

If I can help you with buying or selling a property in Scotland then please contact me Alison Gourley by email on ajg@mitchells-roberton.co.uk or by telephoning 0141 552 3422.

Dealing with Dilapidations- What Tenants Need to Know

A commercial lease will contain a repairing obligation which sets out the extent of a tenant’s obligations to maintain and repair the leased subjects.  The tenant is generally obliged to return the property in a “good and tenantable condition”.  Importantly, this obligation may require a tenant to put the property into a better condition than at the start of the lease (if the property was not in a “good and tenantable condition” at that time.

A tenant who fails to meet these repairing obligations may find that she or he is presented with a bill at the end of the lease for “dilapidations” being the landlord’s estimate of the cost to bring the property up to the required standard.

The potential for dilapidations at the end of the lease is, therefore, a very important consideration when negotiating a new lease as a tenant should, along with the obvious outlays (rent, rates, utility bills, service charges, fit out costs etc.) be budgeting for a potential dilapidations liability at the end of the lease.  Getting the drafting of a repairing and dilapidations clause right from the outset is essential so that the tenant can make an informed estimate of their liability during and at the end of the lease. This is a complicated exercise and a number of factors have to be taken into account:

  • The age, size and character of the property
  • The length of the lease
  • Is the tenant taking on a lease part of the way through?
  • Is there a Photographic Schedule of Condition attached to the lease to limit the tenant’s repairing obligation to keeping the premises in the same condition as shown in that Schedule?
  • The extent of the repairing obligation. Does it cover repairs to the roof for example? Does the tenant have to redecorate at the end of the lease? Is the tenant responsible for historic, or latent & inherent defects?
  • Has the tenant’s fit out to be removed at the end of the lease?

A lease usually allows a landlord to serve what is known as a Schedule of Dilapidations detailing repairs needed to the property at any time during the lease and at the end of the lease. The Schedule especially at the end of the lease is usually prepared by a surveyor.

Where dilapidations exist, a commercial lease normally provides one of three options (usually at the discretion of the landlord):

  • The tenant can complete the works at their own expense and if they fail to do so then  the landlord can complete them at the tenant’s  expense;
  • The landlord can complete the works at the tenant’s expense; and
  • The tenant can pay to the landlord a sum equivalent to the cost of putting the property into the condition it should have been in had the tenant complied with their repairing obligations.

Whilst this area of law is complicated and ever changing, issues at the end of the lease can be dealt with by a little thought and consideration at the start of the lease.  It cannot be stressed enough that getting the repairing and dilapidations clause right from the very beginning  is essentially important to prevent the tenant having a nasty shock at the end of the lease.  This in conjunction with a building survey should ensure that a tenant is aware of what might await her or him come the end of the lease.

Our Commercial Property and Property Litigation experts are here to provide information and advice. Please find out more at http://www.mitchells-roberton.co.uk

The First Digital Memorial Garden in Scotland

The first digital-led memorial garden is to open in Saline in Fife after Landsales Direct, a Scottish company won planning permission. The garden will feature small plots of ground in which purchasers can place mementoes of loved ones. However the plots will not be marked out with any visible signs and can only be located using digital technology on smart phones. John MacCallum of JM Planning Services, who is the planning agent representing Landsales Direct said “ The means of people locating the time capsule for their loved one will be through digital technology so they will be able to access it using a QR code.”

The idea of a historic cache of goods or information placed with the intention that they will be accessed at a future date by using a QR code seems somewhat at variance. It is widely debated when time capsules were first used but current evidence suggests they were used as early as 1876 but may be prior to that. In 2014 a Revolutionary-era time capsule was found at the Massachusetts State House dating back to 1795. And now in the digitally- led new memorial garden  items will be interred  along with a buried microchip and a “life story” website  about the deceased person can be triggered  on their phone using a QR code.

So what is a QR code? It is a Quick Response Code which is a type of two-dimensional barcode that can be read using smart phones and dedicated QR reading devices. Whilst a standard barcode stores up to 30 numbers a QR barcode can store up to a massive 7,089!

It is not clear how the memorial garden space will be allocated nor how the owners of the garden will package the various elements such as QR codes but what it does do is pose questions about ownership of digital assets after death. As most of us use some aspect of online shopping, banking or social media it can cause difficulties for executors to deal with your online assets after your death if you do not leave up- to – date information. This has to be balanced of course with the need to maintain security over passwords.

This first digital-led memorial garden I am sure will not be the last and there is little doubt that people should now be thinking about how their digital assets are dealt with when they are gone. If I can help in any way or you would wish to have more information please contact me Marcus Downie by email on marcus@mitchells-roberton.co.uk  or by phoning 0141 552 3422.