The Supreme Court has now handed down its decision in the seminal case of R (An Application of Unison) -v- Lord Chancellor . In this case the Supreme Court unanimously found that when Government Ministers introduced a system of fees to be paid in the Employment Tribunal they had acted illegally and had attempted to misapply the Will of Parliament.
It is of course extremely rare for the Courts to openly criticise Ministers in this way and we asked Graham Whitehouse, Employment Solicitor at leading Dorset Law Firm Kernon-Kelleher Solicitors to explain the Court’s decision and what impact it is likely to have in the future.
Graham told us: “The importance of this decision should not be underestimated. To put it in context, most modern democracies have three separate and independent elements of government. In the UK these are Parliament who make the laws, the Judiciary who interpret those laws and the Executive who run the country with the laws given to it by Parliament.
The purpose of this separation of power is to impose a system of checks and balances on each element of government, so that no one element can exceed its own power or authority. All of the elements of government are subject to the laws as enacted by Parliament and even Parliament itself is bound by the laws that it creates.
In the Unison case the Court ruled that when in 2013 the Conservative / Lib Dem coalition Government used its executive powers and introduced an Order that required anyone looking to purse a claim to the Employment Tribunal to pay a fee, they had exceed their authority and had attempted to misapply the Will of Parliament.
The Court found that by introducing fees, Ministers had failed to adhere and understand two of the most important and fundamental canons of English Law going all the way back to Magna Carta of 1215.
The Supreme Court found that as Parliament had enacted a number of laws that gave workers the right to seek redress in the Employment Tribunal by making the Order Ministers had impeded those workers from gaining access to justice and Ministers had therefore attempted to misapply the Will of Parliament. The Court went on to question whether Ministers actually understood the principle of the Rule of Law at all.
In reaching its decision the Court looked at the effect that the introduction of fees had had on the number of claims being brought to the Employment Tribunal and found that the number of claims had fallen by around 70% but that there had been no discernible change in the types or nature of the claims being brought.
The Court also found that the cost of the fees that were introduced were in many cases disproportionate and that the value of the fee was for a fixed amount and was dependant only on the category of the claim being made, no account was taken of the value or complexity of the claim only the broad category that it fell into. So, a claim for wages attracted a fee of £390 whether the claim was a simply case for £1 or an extremely complicated case valued at £1,000,000. A claim for discrimination for instance attracted a fee of up to £1,200 no matter how complicated it was or how much time it would take to deal with.
The Court noted that when Ministers introduced fees, they provided that those on very low incomes could receive either full or partial remission of the fees. At the time Ministers anticipated that some 77% of claimants would qualify for remission, however the Supreme Court noted that due to the rigorous assessment requirements, the actual figure of claimants receiving help with fees was around 29%.
The Court found that the vast majority of claimants’ looking to pursue a claim to the Employment Tribunal faced a harsh reality, if they could not pay the fee, they could not bring their claim.
The decision of the Supreme Court is extremely damming and shows that Ministers demonstrated a serious lack of understanding of constitutional matters. It should also be remembered that many of the Ministers behind the introduction of fees are still in office and the Court’s decision is likely to cause a great deal of embarrassment to them.
The wider implications of the decision are that fees are no longer payable for bringing a claim to the Employment Tribunal and any fees that have been paid since 2013, will have to paid back by the Government, amounting to a bill to tax payers of around £32,000,000.
Although the Court's decision has been welcomed by Trade Unions, employers groups have raised concerns that it will lead to a flood of claims now being brought and to higher costs for employers which in turn will damage the fragile economy.
It is likely that the real impact of the Supreme Court’s decision will be to simply restore the number of claims being brought to the Employment Tribunal to its former pre fee levels. However, Ministers have already hinted that the idea of fees has not gone away completely and it is possible that at some time in the future Ministers will again try to introduce a revised system of fees that does not fail foul of the Will of Parliament, but for the moment we can only wait and see what happens next.”
Should you wish to discuss the content of this article or any issues regarding employment matters please contact Graham Whitehouse by email
The loss of a loved one is at best a deeply distressing time. The last thing you need is to face financial uncertainty as well because they died without having made a Will. The law which determines what happens to a person’s property (and this affects both land and money) if they die without a will is known as the intestacy rules and has very strict rules on who will benefit. Whilst the rules might result in the right person inheriting, what if instead they result in it going somewhere different from what the person actually wanted. Although a financially dependent partner or child may be able to make a claim against the estate, such claims are complex, slow and expensive, not to mention traumatic. The people who will benefit under the intestacy rules often oppose such applications, even though they may have had no contact with the deceased for a long time. Marriage and divorce both impact on the intestacy rules too, and can revoke an existing Will.
In this country (within certain limitations) a person is free to give their wealth to anyone they choose. In most cases it is a relatively simple task to ensure that what you want to happen in the event of your death actually does happen. You need only make a Will setting down who you want to inherit and what they are to receive, as well as such things as who is to look after any infant children. You can also use a Will to tell your family what you want to do by way of a funeral, as well as dealing with more complex issues such as putting money into trust for beneficiaries.
At Kernon Kelleher Solicitors we approach the making of a Will in a very matter-of-fact, yet sensitive way, providing practical guidance to help you reach decisions on what you want to do, whilst keeping costs as low as possible.
Even if what you will leave behind seems quite small, it is nearly always best to have a Will setting out exactly what you want to happen in the event of your death. You don't need to be old or ill for a Will to be a good idea. Things can and do happen and you might well make a very difficult situation easier to bear for your family by taking away any uncertainty.
Kernon Kelleher Solicitors has been joined by family solicitor, Tim Fearon. Tim trained in London and for many year ran his own successful law practice in Surrey. His arrival increases the services we can offer and adds an extremely experienced lawyer to the team. Tim has specialised in family law for many years and is a member of Resolution, which aims to settle any family disputes in the least confrontational way possible.
Director, Neil Kernon, said: “We are delighted to announce Tim’s arrival and we are very excited to be able to offer his specialist skills. This addition to the team enables us to offer a complete private client service to our clients in Blandford.”
Kernon Kelleher Solicitors has also recently been awarded The Law Society's Conveyancing Quality Scheme (CQS) accreditation, which provides a recognised quality standard for residential conveyancing practices. The buying and selling of a home is often the largest transaction that most people undertake in their lives. By obtaining CQS accreditation, Kernon Kelleher Solicitors have proven that they have the necessary skills and expertise to provide quality residential conveyancing advice, ensuring that clients understand the process, options, costs and timescales from the outset.
“We are delighted to have obtained recognition through CQS that we have the skills and experience in our office to provide a high quality residential conveyancing service. Kernon Kelleher Solicitors offers a no sale no fee service for all residential conveyancing transactions, meaning that if your transaction does not proceed for whatever reason you will not pay our fees” said Director, Saul Kelleher.
Kernon Kelleher Solicitors has been open since the beginning of February offering conveyancing, wills and probate, litigation, commercial property, company commercial, debt recovery and now family law services, from their offices in Blandford.
Kernon Kelleher Solicitors, 7 Barnack Walk, Blandford Forum, Dorset, DT11 7AL
Telephone: 01258 446288
Blandford Forum firm, Kernon Kelleher Solicitors, are continuing to expand and have announced the appointment of Graham Whitehouse, an Employment and HR Specialist, to their team. The appointment expands the services already offered to local small and medium sized businesses and will sit alongside the company commercial, commercial property and litigation services already provided.
Kernon-Kelleher Director Saul Kelleher said: ”Although we only opened in February, our Blandford Forum Office is going from strength to strength. Our aim is to provide a comprehensive and integrated legal service to both individuals and businesses. There are a number of challenges ahead including the uncertainty surrounding Brexit and the growing levels of red tape and procedures that businesses and employers are required to deal with. Graham has a great deal of experience of working in the Dorset area, and he brings with him a formidable reputation as a practical and no nonsense Solicitor. He will be a great new addition to our team.”
Graham said: “These are very exciting times for the South West region. Dorset in particular has a dynamic and vibrant business community and Kernon Kelleher are ideally located to provide practical and useful support to help Dorset businesses develop and grow.”
Kernon Kelleher offer a range of services to individuals and businesses to include fixed-fee conveyancing, wills and probate, family law, employment, commercial property, company commercial and litigation. In addition Saul Kelleher has recently been one of the first 16 solicitors in the country to undertake the Accredited Legal Representatives Course to enable him to act for clients in the Court of Protection and is looking forward to assisting local clients in relation to financial and welfare issues.
Kernon Kelleher Solicitors can be found at 7 Barnack Walk, Blandford Forum, Dorset, DT11 7AL.
Email us or telephone: 01258 446288.
A recent survey published by the Trade Union Conference (TUC) found that a staggering 52% of women have reported that they have been subjected to some form of sexual harassment in the workplace. The nature of the sexual harassment reported in the survey ranged from simple unwanted comments about clothing or appearance (28%), to unwanted touching (25%) and unwanted sexual advances (20%).
The survey found that: ”In the vast majority of cases, the perpetrator was a male colleague, with nearly one in five reporting that their direct manager or someone else with direct authority over them was the perpetrator.”
Although these figures are likely to shock most people, the survey also found that some 4 out of 5 of the women that responded to the survey, did not report the sexual harassment to their employer, preferring instead to suffer in silence or to simply resign and find another job.
The reasons given by the women surveyed for their reluctance to report sexual harassment in the workplace were even more revealing and included:
The Chief Executive of the TUC, Frances O’Grady called these findings a “Scandal”, however given that Trade Unions represent around 3 million working women in the UK, for over half of those women to have suffered sexual harassment while at work, the word “Scandal” hardly seems to do the situation justice.
We asked Graham Whitehouse HR Advisor and Employment Lawyer at Kernon – Kelleher Solicitors of Blandford, what can be done to tackle this growing problem?
Graham Whitehouse says: “The difficulty for many employers is that they are simply not aware that sexual harassment is taking place. Often the first an employer will hear of the details of a case of sexual harassment is when they discover that a trusted and valuable female employee has resigned, or that they are facing a claim of sexual harassment in the Employment Tribunal and by that time it is already too late”
“Employers have a responsibility to ensure that their employees are not subjected to unwanted sexual conduct in the workplace and there are a number of very easy steps that an employer can take to prevent this such as, ensuring they have an anti-discrimination policy in place so that all employees know what is and what is not acceptable behaviour and that employees feel that if they need to complain about unwanted sexual conduct, they can do so without fear of losing their jobs.
Employers should also consider ensuring that all of their managers and supervisors undertake some form of discrimination awareness training to ensure they can recognise discrimination and harassment in the workplace
Finally employers can ensure that they take all allegations of harassment seriously and once an allegation has been made, ensure that it is dealt with immediately and without any undue delay.
Employers should always keep in mind that allegations of sexual harassment can be deeply upsetting for both the complainant and the alleged perpetrator and all such cases should be dealt with using compassion and understanding.”
Should you wish to discuss the content of this article or any issues regarding employment and HR matters please contact Graham Whitehouse at email@example.com
For further reading a copy of the TUC report: “STILL JUST A BIT OF BANTER –SEXUAL HARASSMENT IN THE WORKPLACE 2016”, may be obtained from www.tuc.org.uk
On 27 April 2017 Saul Kelleher is attending the opening course of the Mental Capacity (Welfare) Accreditation.
The accreditation is designed to ensure access to justice and provide effective representation for some of the most vulnerable members of society. It is the only scheme approved by the President of the Court of Protection and enables members to act as accredited legal representatives (“ALRs”).
The Court of Protection has the same powers as the High Court and makes declarations on difficult treatment decisions, determines mental capacity and settles disputes in relation to the treatment of persons without capacity. It also has the power to determine whether Lasting Powers of Attorney are valid and make some of the most serious medical decisions.
In some cases actions can only be carried out with the court’s authority and in those circumstances and where it is in the best interests of the individual a deputy will be appointed to make decisions about the healthcare of the person lacking capacity.
The course involves two days’ training on the knowledge and skills required to become an accredited practitioner, followed by an interview process to test the knowledge of the applicant. At the end of the process Saul will be able to assist local clients who are looking for specialist legal advice, notably the elderly. Having attended the opening course he will be one of the first in the area who can be appointed by the Court directly to assist the vulnerable and elderly.
Joint Tenants: In law the joint owners are regarded as owning the whole of the property. There are no separate shares in that property and there is no distinction between them. Most importantly, if one of the owners dies, the whole of the property passes to the survivor or survivors (“the Survivorship Rule”). When it comes to selling the property following the death of one owner, only a death certificate is usually required. This position greatly simplifies the situation for the survivors and is the most common form of ownership for married couples where they are content that the survivor will be the absolute owner. Accordingly, ownership of land held as joint tenants cannot be altered by provisions in a will; transfer on death is automatic.
Tenants in Common: As tenants in common, co-owners have separate and distinct shares in the property jointly owned. As they own distinct shares, each owner can sell, gift or mortgage their share as they choose. When one co-owner dies their share does not pass under the Survivorship Rule, but rather passes in accordance with the provisions of their will or the laws of intestacy. This form of ownership is more common where co-owners are not married, where one has made a greater contribution to the purchase price or where there are children from a previous relationship.
When buying property as tenants in common it will not always be clear what shares are owned by the parties or any agreements that have been reached in relation to the division of the proceeds of sale. To avoid conflict it is advisable to record the agreement between the parties in a declaration of trust. It is possible to set out the ownership of shares, who can live in the house, how the property should be sold and the division of the proceeds. The existence of the declaration of trust, signed by the parties, can be recorded at the Land Registry.
The most commonly found reasons for owning property as tenants in common is to protect a share of the property to ensure that it passes to children from a previous relationship. It is also commonly used to protect a share of the property in the event that one spouse enters residential care or to reduce inheritance tax liability.
Debt recovery falls into five main stages:
It is important to work carefully with the client to determine which method of debt recovery is most likely to produce the best result and be most commercially viable. Saul Kelleher is a Solicitor-Advocate (Civil Proceedings) and a specialist in the area of debt recovery.
Japanese Knotweed has moved from being a warning in the legal press to an issue in day to day practice. It is a non-native invasive plant with incredibly strong root systems (the roots can extend to a depth of three meters and up to seven meters laterally). The red steams and flat green leaves make it distinctive. It lies dormant in winter months but grows aggressively from April to October.
The fundamental problem is that this plant can cause physical damage to buildings and land, is expensive and time-consuming to eradicate, damage bio diversity and result in criminal and civil liabilities for owners and occupiers of property. The legal implications of Japanese Knotweed are becoming a real concern for both buyers and sellers.
Local authorities have the power under Section 215 of the Town and Country Planning Act 1990 to require land owners to remedy the condition of land. A failure to comply can result in prosecution, a fine and the costs of undertaking the necessary works. Local Authorities and the Police can potentially serve community protection notices under the Under-Social Behaviour Crime and Policing Act 2014 for failure to keep Japanese Knotweed under control. Japanese Knotweed is likely to be classed as a controlled waste during the removal process creating a potential liability under the Wildlife and Countryside Act 1981. Highlighting the level of concern in relation to this species, recent European Legislation (European Invasive Alien Species Regulation 2014) obliges member states to control and manage invasive alien species, of which Japanese Knotweed is one.
If Japanese Knotweed spreads onto neighbouring land, the owner of the neighbouring land may be able to take common law private nuisance proceedings against the owner of the land for compensation for the loss and enjoyment, the costs of removal and a continuing injunction against reinfestation.
Many clients are worried about the presence of Japanese Knotweed on neighbouring property. Therefore, if you have Japanese Knotweed on your land, you need to act fast to prevent it spreading onto neighbouring property and exposing you to a potential claim in nuisance or action by the Local Authority or Police. Clearly, if your property neighbours another plot with Japanese Knotweed, you may be able to take action to force the owner to deal with it and thereby limit the risk to you. The presence of Japanese Knotweed can significantly affect the value of a property as it can affect the ability to sell the property or obtain a mortgage. Some lenders will not lend against a property affected and others place restrictions on the mortgage. Buildings insurance policies generally do not cover damage and problems caused by Japanese Knotweed.
The Stamp Duty changes do not always, in our view, provide equitable results for individuals. The most obvious and unfair situation is that of people who have an investment property, but do not own a ‘main residence’. Because they have no main residence to sell and have an interest in another property they are subject to the higher rate of stamp duty. Whether a property is your main residence is a question of fact. Clearly, if ultimately the funds from the investment property are to be used in the purchase of the main residence, it would be preferable to dispose of the investment property first to avoid payment of the higher rate of stamp duty. In selling the investment property after purchasing the main residence you would be unable to recover the higher stamp duty rate paid.
An aspect of the stamp duty changes that was possibly not considered is the impact of ownership in the context of separation. It is not uncommon for one party to remain in a home jointly owned. Parties agree that the remaining party will pay the mortgage and both parties remain registered proprietors and liable for the mortgage. In such circumstances both parties have an interest in the property, although one may not be getting any real benefit. Previously, this situation would have had no impact on the rate of stamp duty one party would have had to pay in relation to the purchase of another property. Now, that party will be liable for a higher rate of stamp duty land tax. It is therefore no longer commercially viable to allow this type of situation to continue. As such, it is my view that parties will no longer be prepared to reach these agreements forcing parties to sell the property. One party is likely to refuse to sell forcing the other to seek an order for sale. It makes it more important than ever to draw up a declaration of trust to detail the parties’ ownership of the property and provide a mechanism for the sale of that property.
Talking to people every day about their purchases and the implications of that purchase on stamp duty land tax throws up any number of scenarios and potential implications from a stamp duty perspective. When considering purchasing a home we strongly advise that you consider the stamp duty implications of the purchase as early as possible.
This blog is written by Neil Kernon & Saul Kelleher to provide helpful information on legal matters.