About Paul Neilly

Paul’s first degree was a BA Honours in Financial Services following which he spent five years working for a large insurance company as a pensions specialist. He then completed his law degree at the University of Strathclyde and Diploma in Legal Practice at the Glasgow Graduate School of Law. Paul subsequently joined Mitchells Roberton as a trainee in July 2006 and qualified as a solicitor in September 2008. Principally concerned with civil litigation, Paul specialises in contract disputes, landlord and tenant issues (commercial and residential), debt recovery, family law, employment law and personal injury claims. He also handles cases involving Adults with Incapacity. Paul regularly appears in the Sheriff Courts throughout Scotland and has experience of appearing before Licensing Boards and instructing matters in the Court of Session. Being a general civil litigator Paul is keenly aware of the need to keep step with developments in the law and legal education. This led Paul to join the committee of TANQ, the Trainee and Newly Qualified Society of the Royal Faculty of Procurators in Glasgow, in which role Paul currently organises seminars and networking events for its members. Paul is married with a young son and daughter. In his spare time he enjoys cooking, reading and watching sport, particularly following the exploits of the national football and rugby teams, although this is more of a vocation than a source of enjoyment.

Tougher Rules on employing illegal workers under Immigration Act

The Immigration Act 2016 came into force on 12 July 2016. Immigration minister James Brokenshire said:

“Some employers seem to think that by employing workers who are less likely to complain, including vulnerable migrants, they can undercut the local labour market and mistreat them with impunity…. The unscrupulous need to know that breaking the law is a high-risk activity and the full force of the state will be applied to them.”

The Immigration Act 2016 makes a number of changes to address the criminal offence of employing illegal workers and to tackle the exploitation of low-skilled migrant workers. Illegal workers are defined as individuals that do not have leave to enter or remain in the UK, or are in breach of a condition preventing them from working.

UK employers already have to carry out immigration checks before employees start employment.  Previously, employers would have breached their duties by “knowingly” employing an illegal worker. Under the new Act, employers will commit are in breach if they employ someone they have “reasonable cause to believe” is disqualified from employment because of their immigration status. A Government Factsheet on the new legislation says:

“By making the test more objective we are making it easier to prove the offence.”

Employers must now undertake three checks in order to comply with the law:

  1. Obtain the employee’s original documents as prescribed in the Home Office Guidance.
  2. Check, in the presence of the employee, that the documents are original and valid.
  3. Copy and keep the documents securely and record the date of the check and date for follow up checks.

To avoid discrimination claims, employers should carry out right to work checks on all prospective employees, not just those who appear to be of non-British descent.

The Act also introduces increased scrutiny and tougher potential sanctions for employers:

  • The maximum custodial sentence on indictment has been increased from 2 to 5 years
  • A maximum financial penalty of £20,000
  • A visa levy (immigration skills charge) on employers that use foreign labour.
  • A new power is introduced to close premises for up to 48 hours where a business employs illegal migrants. If the employer cannot prove they carried out appropriate checks then the business could be placed under special compliance requirements, including a period of continued closure.
  • A new Director of Labour Market Enforcement will oversee public bodies which enforce the different minimum standards for workers, including HMRC.

While the Immigration Act 2016 is now law, the majority of new measures will take effect only once further regulations are made. If you have any questions or if we can help in any way then please contact Paul Neilly on 0141 552 3422 or by email pdn@mitchells-roberton.co.uk

Employment Law 2016 – Key Financial Uplifts

  1. Introduction of the National Living Wage – from 1 April 2016, the National Living Wage took effect in the UK. All workers aged 25 and over are entitled to be paid a minimum of £7.20 per hour.

 

  1. National Minimum Wage Rates – from 1 October 2016, the apprentice rate will rise to £3.40, the minimum hourly rate for 16-17 year olds will increase to £4.00, 18-20 year olds will be entitled to a minimum of £5.66 and 21 -24 year olds must be paid at least £6.95 per hour. Penalties for employers failing to pay the above rates doubled from 1 April 2016 to 200% of arrears, subject to a maximum of £20,000 per worker.

 

  1. Unfair Dismissal Awards – from 6 April 2016, in unfair dismissal claims the maximum Compensatory Award has increased from £78,335 to £78,692. The Basic Award, which applies in addition, has increased from £14,250 to £14,370.

 

  1. Redundancy Pay – from 6 April 2016, the maximum amount of statutory redundancy pay has been increased from £14,250 to £14,370. The weekly figure at which pay is capped for calculating redundancy payments has increased from £475 to £479.

 

  1. Statutory Sick Pay – from 6 April 2016, the standard rate of statutory sick pay is £88.45 per week.

 

  1. Statutory Maternity, Paternity and Adoption Pay – from 6 April 2016, the standard rate of statutory maternity, paternity and adoption pay is £139.58 per week.

 

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.

Middle Aged Need Not Apply

In the last year, the Equality and Human Rights Commission (EHRC) has received over 100 complaints about discriminatory advertisements including:

  • Age discrimination – a recruitment agency advert stated that over 45s need not apply
  • Disability discrimination – a hotel said it would not offer accommodation to disabled people
  • Sexual orientation – another hotel said that it wouldn’t allow same sex couples to stay in a room together
  • Sex discrimination – a bar advertised for a “part-time shot girl”

Discriminatory advertising is often overlooked in the area of discrimination law yet the EHCR has warned that thousands of people could be at risk of being denied jobs each year due to unlawful advertising.

The Equality Act 2010 prohibits employers from discriminating on any of the nine protected grounds, such as age, disability or gender reassignment, when deciding who to offer employment.

Some principal recommendations in the EHRC’s good guidance practice are:

  • When recruiting, include an equal opportunity statement to make it clear that applicants are welcome from all suitably qualified or experienced people.
  • Avoid words implying a restriction on those who may apply such as “young”, “physically active” or “cameraman.”
  • If there is a real occupational requirement for an applicant to have a protected characteristic, for example for a female to work in a women’s refuge, this must be objectively justifiable.

Employers can face two potential actions if they place a discriminatory advert. A tribunal may award monetary damages to an unsuccessful applicant or a person who is genuinely deterred from applying and / or enforcement action may be taken by the EHRC even if no one has actually complained.

If you would like to discuss the wording of any advertisement for a new employee, the issue of a particular occupational requirement or indeed any employment matter, please contact Hugh Grant (hjg@mitchells-roberton.co.uk) or Paul Neilly (pdn@mitchells-roberton.co.uk) or telephone 0141 552 3422.

Know Your Enemy (or at least, your debtor)

Time was, you’d go to court and maybe jail for owing somebody money. Until the late nineteenth century, every year the debtors courts throughout the UK would lock up thousands of people who were unable or unwilling to pay their debts.

In recent times, the ignominy of debt has receded considerably if not entirely. Most of us have debt of some kind, whether a mortgage, loan, credit card or student loan. Modern society doesn’t function without debt. Indeed, recent history reminds us that sometimes untrammelled debt can threaten the very foundations of society but that’s a well trodden path which we’re not taking today.

Just for today then, let’s assume a few things. You are owed money. You’ve had the good sense to instruct the experienced people at Mitchells Roberton to recover that debt for you. They have duly obtained a decree (court judgment) ordering Debtor McShifty has to pay you £X plus interest and expenses.

How do you enforce the court order? In other words, how do you convert an order for payment into money in your hand?

The more information you get hold of about the debtor at the outset, the greater your chances of recovery if there is a problem down the line. Even the commencement of a relatively simple court process can work… and you can be awarded most of the cost of obtaining a court order. Thereafter, enforcement options are generally, although not strictly, in order of preference based on the method (or the threat of same) which most reliably produces a return. The appropriate method will depend on the individual circumstances:

  • Payment arrangement – armed with the court order for leverage, we negotiate with the debtor and agree how and when they will pay you.
  • Earnings arrestment – if the debtor is currently working (not self-employed), a portion of their wages are “arrested” at source and paid to you by their employer.  Ideally, you would know the name and address of their employer but an employment trace can be done.
  • Sequestration (bankruptcy) – if the total debt exceeds £3,000, we can ask the court to make your debtor bankrupt. A trustee will then be appointed to ingather their assets including any homes, buildings or land. Successful recovery of your debt depends on the debtor having sufficient assets to meet their liabilities, not only to you but the other creditors as well.
  • Inhibition – if the debtor owns heritable property (land, buildings), we can register an inhibition which would prevent them selling or mortgaging any property without first settling the debt due to you.
  • Bank arrestment – if the debtor has sufficient funds in the bank, we can “arrest” those funds which the bank must then transfer to you. You need at least the name of the debtor’s bank. Bank account details can be found on cheques and are sometimes provided during transactions for making payments.
  • Attachment of moveables– Sheriff Officers list and value “non-essential” items in the debtor’s home or business premises with a view to selling at auction to realise the debt. The threat of losing these items and the embarrassment of having Sheriff Officers there can scare debtors into payment. This approach is only recommended where the debtor is known to own valuable non-essential items e.g. vehicles, jewellery.
  • In exceptional cases, if recovery prospects are poor because the debtor has no assets, we may recommend no current action. However, a court order lasts for 20 years so at some point it will pop up on a credit search or otherwise give the debtor a sufficient problem that they will approach you to settle the debt.

The obvious common thread in each of the above options is knowledge of the debtor and their financial position. Know who you are dealing with.

You don’t need to know whether the lady selling you a newspaper owns her own house. But if you’re paying a decorator a couple of thousand to do up your house, if they botch it, how do you know where to seek compensation from them? What if you do contract work for somebody and they don’t pay you? Who is the person behind the trade name? Has the limited company (small print at the foot of the quote) got any assets or will it just close if pressed to pay?

At the start, ask them for bank details rather than paying cash. Ask for an address. Take a note of car registrations. Find out where they work. It is perfectly reasonable to make relevant enquiries at the outset especially where you have no prior dealings with someone. If this scares someone off, that should tell you everything.

Some of this information is publicly available but in most cases, it can only be obtained at the outset when relations with the debtor are good. When you fall out, you can be sure the garrulous amity which marked your first pleasant discussions will disappear. Most likely, your pleas for payment will be ignored.

Debtors are often uncooperative and trying to recover a debt in those situations can be stressful. If you need assistance recovering a debt of any size or type, Paul Neilly or Hugh Grant in our Court Department can help you.

So, as it ever was (and just because lawyers like Latin): Scientia Potentia Est – knowledge is power.

If I can help or you would like further information then please contact me by email pdn@mitchells-roberton.co.uk or by phoning me on 0141-552-3422.

Get on your bike!

Believe me when I tell you I have nothing in common with Norman Tebbit but, for entirely different and laudable reasons, I would coin his phrase and ask employees to “get on their bikes”. I am delighted to say that Mitchells Roberton has joined Cyclescheme, an initiative to encourage people to cycle to work. It is a super scheme. The health and environmental benefits are obvious but there are also significant financial incentives:

  • Reduced commuting costs
  • No parking costs – we are lucky that our offices at George House, North Hanover Street, Glasgow benefit from a secure and covered bike shed (and shower facilities!) – most places of work will have somewhere to park a bike at no cost.
  • Most significantly, employees typically save at least 30% on the cost of a new bike and accessories.

This is how it works:

  • The employer pays for a new bike & accessories (up to £1000) and retains ownership.
  • The employee hires the bike by a monthly salary sacrifice from their gross pay over an initial hire period (usually 12 months).
  • The employee then pays a nominal final amount (3%-7% of the initial cost of the bike) and after a secondary “hire” period (no further payments) ownership transfers to the employee.
  • The employee still earns the same amount. Deducting payments from gross salary rather than net salary is how the cost savings are achieved.

Most bike shops participate in the scheme and there are lots to choose from.

I joined the scheme recently and have been cycling to work since, so middle age and being dreadfully unfit are no barriers! My commute is about 4 miles and takes less than 20 minutes door to door. Glasgow’s roads are reasonably bike-friendly and there are extensive cycle lanes and paths to use. As I write my bike is in the courtyard waiting to be pedalled home.

Happy trails!

Clare’s Law is to be extended across Scotland

A trial scheme which allows people to be told if their partner has been violent in the past is to be extended across Scotland.

The trial scheme has been running in Aberdeen and Ayrshire for the past six months. In this period 59 applications were made for information with 22 people being warned their partners had a history of domestic abuse. Following on from the success of the trial Nicola Sturgeon announced that the scheme would be rolled out throughout Scotland later this year.

The initiative is called ‘Clare’s Law’ after Clare Wood who was strangled and set on fire by George Appleton, her violent and obsessive former boyfriend, in Salford, Greater Manchester in 2009.    Appleton had a history of violence and harassment against women which Ms Wood did not know about. Her father, Michael Brown, has been campaigning for people to have the right to ask for information about partners. He said “I very much welcome the national roll out of the disclosure scheme across Scotland. It is heartening to see the success of the pilots and to know that the people given these disclosures will now hopefully not be victims of domestic abuse.”

Clare’s Law : How to use it.

Any person can make an application about their partner if they are concerned that that partner may harm them; and any concerned third party (such as a parent, relative, neighbour or friend) can also make an application.

So what do you do?

  1. The first step is quite simply to contact the police. You can do this online, in person at a police station, by phoning 101 or by even speaking to a police officer in the street.
  1. At this initial contact with the police you will need to provide details about yourself and what prompted your enquiry. If when speaking to the police you allege a crime by your partner – for example- that your partner punched you- the police will investigate this as a crime and may arrest your partner. The police will run initial checks to establish if there is an immediate risk.
  1. You will then have a face to face meeting to complete the application. At this stage you will need to provide 2 forms of identification. The police will run more checks and speak to other services such as the Social Work Department and Prison Services. Once the police have gathered all the information available they will do a risk assessment to determine if anyone is likely to be harmed. The maximum amount of time from this step until potential disclosure should be 45 days.
  1. If the police do not think abuse is likely they will not make a disclosure. The information the police and other agencies hold on individuals is private and there has to be a pressing reason to share it.
  1. If the police feel that abuse is likely a multi- agency meeting will be held to consider disclosure and whether any disclosure is ‘lawful, necessary and proportionate’ to protect you from your partner.  If at the meeting a decision is made to disclose information, it will then be decided who should receive the information and a safety plan will be put in place to provide you with help and support. The person to whom the disclosure is made is not allowed to disclose this information to anyone else without the explicit permission of the police.
  1. If you request a disclosure about your partner, it is likely that you would be given any details directly. If a third party has requested a disclosure the police may well go straight to the victim of abuse to make the disclosure. This means the third party might not be told the outcome.

If I can help or you would like further information then please contact me by email pdn@mitchells-roberton.co.uk or by phoning me on 0141-552-3422.

Parking Costs: Chaos in Glasgow’s West End

A protected expenses order has been granted at the Court of Session in favour of a community council limiting its liability for the costs of an appeal against a decision by Glasgow City Council.

Hillhead Community Council (HCC) brought an appeal against the proposed Glasgow City Council (Hillhead) (Traffic Management and Parking Control) Order 2014.  If granted, that Order would see the introduction by Glasgow City Council of parking bays for use by both residents and visitors.  The cost of a permit would be reduced for residents and visitors would park on a pay and display basis.

HCC brought a challenge in the Court of Session against the local authority’s decision to allow others to use resident-only parking spaces.  HCC maintain that the city council failed to consider all objections to the making of the order and to have regard to national air quality strategy.

The HCC secretary fears such changes would lead to “traffic chaos”.  One current permit holder, a single mother of three with a disabled child uses her car for runs to two different schools and trips to hospital, says the “system will benefit people from outside the area and meet the demands of businesses.  Residents do not want it.”

In early April 2015, Lord Bannatyne ruled that it would be “fair and just” to limit the community council’s liability for legal expenses to £1,000 as they would not otherwise be able to afford to proceed with the action.  He also determined that the local authority’s liability should be limited to £15,000.

A protective costs order can be made at any stage of proceedings on such conditions as the court thinks fit, provided that the court is satisfied that:

  • The issues raised are of general public importance
  • The public interest requires that those issues should be resolved
  • The applicant has no private interest in the outcome of the case
  • Having regard to the financial resources of the applicant and the respondent and to the amount of costs there are likely to be involved, it is fair and just to make the order
  • And if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in doing so

Lord Bannatyne in a written opinion said “I conclude that having regard to the first appellants’ financial circumstances including the sum raised to date for this action and their own legal expenses together with the general financial position of the respondents it would be fair and just to limit their liability and the expenses to the respondents to the figure of £1000.” This decision was greatly welcomed by the Community Council.

We await developments with interest.