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We aim to provide practical guidance on useful areas of busness law.  

By sfb solicitors, Jul 4 2018 02:06PM

A group of Hermes couriers have won their fight to be treated as workers instead of independent contractors in what was described as one of the most significant victories against exploitation of gig-economy workers.


The couriers were incorrectly classified as self- employed and were entitled to receive the minimum wage and holiday pay, and to reclaim unlawful deductions from their wages.


Read the full article here:

https://www.theguardian.com/business/2018/jun/25/hermes-couriers-are-workers-not-self-employed-tribunal-rules


Addison Lee is another company which faced defeat in court over its treatment of workers as ‘independent contractors’ without rights to holiday pay or the national minimum wage.


Read the full article here:

https://www.theguardian.com/uk-news/2017/aug/02/addison-lee-suffers-latest-defeat-in-legal-row-over-gig-economy-rights


Another interesting case is concerning Uber. The Tribunal ruled in 2016 that Uber drivers should be treated as employed workers with rights to minimum wage and sick pay. However, Uber were granted the right to appeal but lost its appeal against a ruling that its drivers should be classed as workers with minimum-wage rights.


Read the full article here:

https://www.theguardian.com/technology/2017/nov/10/uber-loses-appeal-employment-rights-workers


Similar verdicts were reached in cases brought against Uber, City Sprint, Excel and eCourier.


So, what is the difference?


A person is generally classed as a ‘worker’ if:


• They have a contract or other arrangement to do work or services personally for a reward (your contract doesn’t have to be written);

• Their reward is for money or a benefit in kind, for example the promise of a contract or future work;

• They only have a limited right to send someone else to do the work (subcontract);

• They have to turn up for work even if they don’t want to;

• Their employer has to have work for them to do as long as the contract or arrangement lasts;

• They aren’t doing work as part of their own limited company in an arrangement where the ‘employer’ is actually a customer or client.


Workers are entitled to certain employment rights.


An independent contractor is a self-employed person who provides certain services to a second-party called the principal, or to a third -party on behalf of the client. An independent contractor is not under the control, guidance, or influence of the client, and unlike an employee, does not owe a fiduciary duty.



Why Summerfield Browne?


Summerfield Browne Solicitors will aim to reach a final settlement, that will give you and your family, the compensation you need and deserve. Our team of specialist lawyers will robustly negotiate on your behalf, and endeavour to obtain the best settlement for you as soon as possible.




By sfb solicitors, Jun 26 2018 10:31AM

It may be difficult to believe but the main law that relates to the validity of Wills is now over 180 years old. The chances are that if you were to challenge a Will claiming you believe that the Will is invalid you would be relying on an Act of Parliament known as “The Wills Act 1837”.


The Wills Act 1837 contains guidance on the circumstances on when a Will can be revoked (i.e. held to be invalid). These include the following circumstances:


- When a person who has a Will gets married or enters into a Civil Partnership the Will is usually found to be revoked (s18 and s18B, Wills Act 1837). This is the general rule and there are exceptions.


- When a person gets divorced or formally ends their Civil Partnership their Will is revoked (s18A and s18C, Wills Act 1837)


- If the Will is destroyed, then it is revoked (s20 Wills Act 1837).

- If there is a more recent Will, then the previous Will is revoked (s20 Wills Act 1837)


The above examples still apply to Wills in England and Wales and are regularly referred to in court.


By way of example if a grandmother wrote a Will in her 50s and, in her 70s, decided to divorce her husband and re-marry then the Will that she had written in her 50s would usually automatically be revoked. It is for this reason that people are often encouraged to write new Wills when their circumstances change and often people do not do this as they are put off by the financial cost. If there is no valid Will then the intestacy rules will apply and this can lead to family members benefitting from an estate rather than the people that a person actually wants to leave their estate to. This can be upsetting to family members left behind.


If you need assistance with any of the issues mentioned above or you believe that a Will is not valid please get in touch and ask to speak to a solicitor with Contentious Probate experience.


Summerfield Browne have offices in Leicester, Birmingham, London, Oxford, Cambridge and Market Harborough.



By sfb solicitors, Jun 22 2018 10:09AM

If you are a tenant and you are issued with a notice pursuant to S21 of The Housing Act 1988 then you have effectively been issued with notice that your landlord intends to seek possession of the property. A s21 Notice can be issued by the landlord in relation to an Assured Shorthold Tenancy (“AST”) or during a periodic tenancy.


Under an AST the s21 Notice should provide at least 2 months’ notice to the tenant. If the s21 Notice has been issued in relation to a periodic tenancy, then the notice period applicable will be dependent on the terms of which the rent is paid.


In relation to AST’s a s21 Notice cannot be issued to the tenant until the fixed term of the tenancy has ended, unless there’s a clause in the contract which allows this. It should be noted that for a section 21 notice to be validly served the tenant must have, at some prior stage, received a valid Energy Performance Certificate, a copy of the landlord's current Gas Safety Certificate and a copy of the government’s ‘How to Rent’ guide.


A s21 Notice can be used for an AST which was commenced prior to 1st October 2015 but cannot be used for an AST that was commenced on or after 1st October 2015. For all tenancies commenced after the 1st October 2015 the landlord must serve a completed form 6A upon the tenant, except for statutory periodic tenancies which would come into force on or after 1 October 2015 (at the expiry of the fixed term ASTs created before 1 October 2015). From the 1st October 2018, a s21 Notice must not be used for any AST regardless of when it commenced, as prescribed form 6A section 21 Notice’s must be used for all AST’s in England. The prescribed form 6A will provide the tenants with at least 2 month’s notice that the landlord intends to seek possession of the property.


The Landlord cannot serve a s21 Notice if:


• The tenancy is less than 6 months old.

• The fixed term has not ended (unless there’s a clause in the contract which allows for such action).

• The property is categorised as a house in multiple occupation (HMO) and does not have an HMO licence from the council.

• The council has served an improvement notice on the property in the last 6 months.

• The council has served a notice in the last 6 months that says it will do emergency works on the property.

• The tenancy commenced after April 2007 and the tenants’ deposit has not been placed in a deposit protection scheme.


If the property is located in Wales, then the Landlord must hold a landlord licence to be able to issue a s21 Notice.


If you are a Landlord wishing to serve a s21 Notice or a tenant that has received a s21 Notice, then call our team of specialist solicitors who will be able to assist you with your matter. We have offices in London, Birmingham, Cambridge, Oxford, Market Harborough and Leicester.




By sfb solicitors, Jun 18 2018 09:18AM

With the first England game of the World Cup on Monday 18th June employers may be thankful that the England group games fall outside of normal working hours! There are however many jobs that do not involve the traditional 9 – 5 and ACAS (the organisation that assists with disputes between employees and employers) has produced guidance on how employers can ensure that their employees are clear as to what is expected of them during the World Cup. After all many employees that work shifts will be facing a conflict of whether they will be at work or watching the World Cup!


The guidance from ACAS is helpful and covers the following areas:


1. Planning ahead

2. Taking a flexible approach

3. Time off

4. Sickness absence

5. Websites/social networking

6. Drinking/being under the influence at work


This article is a reflection of the guidance published by ACAS and further information is on the ACAS website.


Ideally employers should already have in place a policy that tells employees how much notice they have to give if they require time off. A last-minute request to watch an England game will probably be met with short thrift considering many other members of staff may have planned ahead and already booked the time off! If in doubt, check the ‘time off’ policy in your staff handbook.


ACAS have advised that employers may wish to consider being a bit more flexible on the day of a World Cup game and allow, for example, employees to arrive early and leave early to watch the game.

A consideration for employers will also be the ‘day after the night before’. Will you allow staff the chance to come to work a bit later and make the time up at the end of the day? This could be a useful way to avoid a member of staff calling in sick the day after a big England win!


For fans with real commitment that are flying to watch a game they will want to book off annual leave. ACAS have also advised employers to remind employees not to book flights before holiday is authorised.


Employers may have already issued guidance on social media use and the pre-match excitement may be too much for some members of staff. In these circumstances employers should be consistent with existing policies on what social media use (if any!) is acceptable.


ACAS have also highlighted the fact that many football fans may enjoy a beverage or two when there is a game on and that staff may face disciplinary procedures should they arrive at work ‘under the influence’. A staff handbook or policy on alcohol is useful here too.


Conclusion


With the World Cup now upon us now may be the time to review your contracts of employment and staff handbook in relation to staff behaviour. The World Cup is a time to be enjoyed and employers would do well to prepare for the inevitable excitement (and later disappointment!) over the next month or so!



By sfb solicitors, Jun 15 2018 03:36PM

In the modern era the business mode operated by many companies has vastly developed since the Employment Rights Act 1996 was introduced. It is now common for workers to work on zero hours contracts or services to be engaged on a self-employed basis; otherwise referred to as ‘gig economy workers’. Companies often have worldwide franchises without ‘employing’ any staff, most modern companies engage the services of staff on a self – employed basis. It appears that the legislation is outdated and does not offer protection to a huge proportion of the workforce.


The Judgment handed down by United Kingdom’s highest court; The Supreme Court, in the landmark case of Pimlico Plumbers Ltd v Smith [2018] UKSC 29, on appeal from: [2017] EWCA Civ 51, could potentially have widespread implications for many who fall within the category of ‘gig economy workers’ or ‘self-employed workers’ and afford them the same worker’s rights and protections as a person who is classed as an employee.


The brief facts of the case are that Mr Gary Smith had undertaken plumbing work for Pimlico Plumbers Ltd between 2005 – 2011. Mr Smith had signed an agreement with Pimlico Plumbers and was also subject to numerous conditions imposed upon him via a manual that was issued by Pimlico Plumbers.

The agreement and manual imposed upon Mr Smith certain conditions that he had to uphold, such as wearing the branded company uniform and carrying a valid company ID card, to name but a few. Mr Smith agreed that was liable for his own tax and VAT payments and had to ensure that he held public liability insurance.


In January 2011 Mr Smith suffered a heart attack. Due to his health condition Mr Smith submitted a request to Pimlico Plumbers requesting that his working week be reduced from 5 days to 3. Pimlico Plumbers refused to grant Mr Smith’s request. The branded company van that Mr Smith had leased from Pimlico Plumbers was removed from him.


Mr Smith lodged a claim for unfair dismissal with an Employment Tribunal in 2012. Pimlico Plumbers maintained that Mr Smith was employed on a self-employed basis and defended the claim on the basis that self–employed individuals do not have the rights or benefits of employees.


The original Employment Tribunal held that Mr Smith was not an ‘employee’ of Pimlico Plumbers but he was a ‘worker’ and that he had been in the ‘employment’ of Pimlico Plumbers.


Pimlico Plumbers appealed the matter through the Employment Tribunal Appeal process, The Court of Appeal and The Supreme Court, on the basis that Mr Smith was not entitled to the same benefits, protections and rights as an employee, as the dominant feature of Mr Smith’s agreement with Pimlico Plumbers was for his personal performance and he could appoint a substitute to perform any job that had been given to him by Pimlico Plumbers.


Mr Smith argued that whilst he agreed that he was entitled to appoint a ‘substitute’ in relation to any jobs that were allocated to him by Pimlico Plumbers, the substitute had to be appointed from Pimlico Plumbers bank of plumbers.


Due to the agreement and manual Mr Smith was also subject to extensive covenants that would restrict his future employment options following the termination of his agreement with Pimlico Plumbers.

The Supreme Court upheld the decision of the lower courts, in so far that, they dismissed the appeal of Pimlico Plumbers Ltd and upheld the finding of the original Employment Tribunal. Mr Smith’s matter will now revert to The Employment Tribunal to be heard.


Based on the Judgment of the Supreme Court the floodgates could now be open for claims in relation to employee rights, benefits and protections by workers who were previously denied such benefits.


Whilst the Judgment of The Supreme Court did not go as far as to redefine what legally constitutes a worker, the way could now be paved for similar actions to be taken by workers who have previously been denied the same protections and rights as employees.


If you require legal advice in relation to Employment Rights, then contact our team of specialist solicitors who will be able to fully assess your matter and provide you with legal advice. Each case will of course be assessed on a case by case basis and will be subject to its own merits.


We have offices in London, Birmingham, Cambridge, Oxford, Market Harborough and Leicester.



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