Future bulletins will review this change in greater detail.

Matthew Burton Employment Partner matthew.burton@bpe.co.uk Phone: 01242 248281

The headline news is that there was a 79% drop (compared with the same period in 2012) in the number of Tribunal claims lodged.  Also, the number of unfair dismissal claims seems to be down by 65%.

These latest statistics suggest that Tribunal fees are indeed putting of vexatious Claimants (a.k.a. Mr “My employer hasn’t done anything wrong, but if I put in a claim I might get a nuisance value pay-off”!). However, whilst I have seen my fair share of time wasters in the past, I do not believe that the 79% drop solely relates to this type of Claimant. It may be that other Claimants are being put off from bringing claims due to the new costs involved and the minefield that is the fee-remission system (which is available to help low earners). Either way, this recent batch of statistics, on the face of it, supports the arguments raised by Unions that the new fees are preventing access to justice.

So, all in all, good news for employers at the moment. However, only time will tell whether this trend will continue. It may be that the number of claims being lodged will start to pick up when those who act for Claimants get completely to grips with the fairly complex fee remission system and new insurance offerings (covering the cost of fees) become available. Also, if the current dramatic trend continues, it may be that the Government decides to re-think its approach on fees (stranger things have happened). However, at the moment, it looks unlikely that the volume of claims will reach previous levels any time soon.

Matthew Burton Employment Partner matthew.burton@bpe.co.uk Phone: 01242 248281

The key changes include:-

•           Limit on amount of compensatory award for “ordinary” unfair dismissal will increase to £76,574, from £74,200 (subject to the overall cap on compensation for ordinary unfair dismissal which has been in place since 29 July 2013, namely the lower of this new limit and 52 weeks’ pay) – a nice easy figure to remember!?

•           Maximum amount of “a week’s pay” for the purpose of calculating a redundancy payment/basic or additional award of compensation will increase to £464, from £450.

•           Minimum amount of basic award for dismissals which are unfair due to Health and Safety, employee representative, trade union, working time or occupational pension trustee reasons, will increase to £5,676, from £5,500

Due to the changes in the cap for a weeks’ pay, the maximum entitlement to statutory redundancy pay will increase to £13,920.00, an increase from the previous cap of £13,500.

	Steve Conlay Employment Paralegal steve@conlay@bpe.co.uk Phone: 01242 248221
	Jaime Gay Employment Legal Assistant jaime.gay@bpe.co.uk Phone: 01242 248252

Whilst it is true that the law provides special protection for pregnant employees or those on maternity leave (and rightly so), some employers have a tendency of going too far, and treating staff as ‘untouchable’ during this period, or not going far enough to comply with the law.  So does the case of PC Keohane help make things any clearer?  Well in my opinion, no it doesn’t.

PC Keohane was a narcotics dog handler and her employers (the Metropolitan Police) had a policy on the re-allocation or withdrawal of police dogs where handlers were likely to be non-operational for a while.  In particular, in dealing with cases of pregnancy or maternity leave (for health and safety reasons), the policy specified that female officers would in most cases not be permitted to continue in their role as operational dog handlers during their pregnancy.  That seems sensible doesn’t it? The employers amongst you may well feel that this demonstrates best practice, to ensure PC Keohane was not exposed to any unnecessary risks during a protected period and also, to ensure that her dog, Nunki Pippin, was kept in active service.

So when PC Keohane told her employers about her pregnancy, little Nunki Pippin (for the record, I love this name) was taken away. However, PC Keohane believed the Police’s policy to remove Nunki was discriminatory on the grounds of her pregnancy and an Employment Tribunal agreed.

The decision was appealed and the Appeals Tribunal concluded that whilst the Police's need to keep Nunki in active service might have been the main factor in the removal decision, this did not mean that PC Keohane’s pregnancy was not a cause of it. The “detriment” suffered by PC Keohane did not have to be caused solely, or even mainly, by her pregnancy; it was enough if it was a significant and material influence in the Police’s decision.  On that basis, there was held again to be discrimination.

It was commented that had the Police made a commitment to returning Nunki to PC Keohane at the end of her maternity leave this might have been sufficient to avoid the discriminatory treatment.

So what can we learn from this? Think very carefully about making any decisions in which pregnancy or maternity are a factor even when there does not appear to be any obvious unfair treatment or disadvantage.  Focus in particular on any potential ‘detriment’ which may be suffered (whether actual or anticipated) upon a return to work.  My advice, (though you might say I would say this wouldn’t I!) is to take legal advice well in advance of having to make any decisions on the subject matter.

Finally, if you can offer a temporary home for Nunki for 9 months …join the queue.

Chris Aldridge Employment Solicitor chris.alridge@bpe.co.uk Phone: 01242 248431

Another common claim is that a worker has been subjected to a detriment (which could include disciplinary action, loss of work or pay, or damage to career prospects) because he or she has made a protected disclosure.

A recent case explored whether, for such a detriment claim to succeed, the person who subjected the worker to a “detriment” had to have knowledge of the Claimant’s protected disclosure, or whether it was enough for the Claimant simply to have made a protected disclosure and for the employer (or one of its employees) to have then subjected the worker to a detriment?

Thankfully for employers, the Employment Appeals Tribunal decided that the individual(s) involved in any detriment had to have knowledge of the Claimant’s protected disclosure. Otherwise, there was no evidence that the protected disclosure had materially influenced the employer’s treatment of the Claimant.

As ever, our advice to employers is to have a Whistle-blowing Policy which clearly sets out their process for dealing with whistleblowing allegations, ensure that all managers and staff are trained on the Policy, and apply it consistently in every case. Hopefully, this should reduce the risk of whistle-blowing detriment or unfair dismissal claims.

Sarah Lee Employment Associate Solicitor sarah.lee@bpe.co.uk Phone: 01242 248261

This test was considered in the recent case of Ahmed Mohamud v W M Morrison Supermarkets plc. Here, a customer (of Somali descent) visited a Morrison’s petrol station in Small Heath, Birmingham.  On entering the Kiosk at the petrol station, the customer asked a Morrison’s employee if it was possible for him to print off some documents from his USB memory stick.  The employee responded in a rather extreme way, which involved them being abusive and racist. Following this treatment, the customer subsequently left the kiosk and walked to his vehicle. However, undeterred, the employee followed the customer outside onto the forecourt and then proceeded to subject the customer to a foray of punches to the head and kicks, whilst the customer curled up on the floor!

Unsurprisingly the customer brought a claim against Morrison on the basis that it was vicariously liable for the actions of its employee. During evidence, and most importantly, the Court heard that the employee was encouraged by his Supervisor not to follow the customer out of the premises, and moreover, he was then encouraged to go back inside. After hearing this, the Court concluded that the employee had consciously decided to leave his kiosk and follow the customer “purely for reasons of his own” and so Morrison should not be liable for his actions as a result. The Court of Appeal later agreed with this approach.

As always, each matter will turn on its own facts, but in this case, the employee’s actions were clearly beyond the scope of his duties. However, previous cases have shown that where there is the risk of an attack taking place which is incidental to the type of work carried on, it could be held that there is a sufficiently close enough connection between wrongdoing and the employment. An example would include a night club doorman or a Security officer at Morrison, as they would be exercising authority, protecting the premises and keeping order. If it had been this type of employee who had assaulted Morrison’s customer then the outcome of the Mohamud case would probably have been different!

Pav Clair Employment Solicitor pav.clair@bpe.co.uk Phone: 01242 248221

A penalty will be payable by those employers who fail to defend a claim and where the Tribunal finds that their breach of a Claimant’s employment rights had one or more “aggravating features”. From a financial perspective, the penalty which can be levied is a sum which is equal to 50% of the compensation awarded in favour of the Claimant and will be subject to a minimum of £100 and a maximum of £5,000.

You may query what constitutes an aggravating feature. If so, rather unhelpfully, there has been no definition provided by legislation. It will therefore be left to the Tribunal’s discretion and as cases come through the system they will be watched carefully to see what would be categorised as an “aggravating factor”. That said, some explanatory notes provided in relation to the new system confirm that factors which may be taken into account by a Tribunal when deciding whether it should impose a penalty include:

•           the size of the employer, the duration of the breach, and the behaviour of the employer and employee;

•           if the employer’s actions were deliberate or committed with malice; and

•           if the employer was an organisation with a dedicated human resources team, or where the employer had repeatedly breached the particular employment right.

So it looks like a Tribunal is more likely to find “aggravating” features where an employer has a dedicated HR department and a breach has been deliberate or repeated.

Interestingly, penalties will be payable to the Government rather than to the Claimant that suffered the alleged aggravating feature. Also, like parking tickets, there is a reduction in the penalty available if paid within 21 days.

What this means for employers is that it is even more important to deal with grievances appropriately and to obtain legal advice on Employment Tribunal claims at an early stage. The introduction of financial penalties has been criticised for placing additional burdens on businesses and placing pressure on employers to settle claims.  However, employers should remember that a financial penalty will not be made in all cases and a financial penalty will only be awarded if the employer loses a claim at Tribunal and there are aggravating features present.

Heyma Holmes Employment Associate Solicitor heyma.holmes@bpe.co.uk Phone: 01242 248253

Guests of BPE Solicitors LLP will be fastening their seatbelts at the Parabola Arts Centre on Saturday 5^th April at 3pm, for an insight into the high-octane world of Formula One, from the Williams Martini Racing team’s composite design engineer, Kirsty Pinnell.  We’d like you to join us, so we’re giving away 2 tickets to the first two companies in Gloucestershire who tweet ‘Formula 1’ to @BPE_Solicitors or email fay.daniels@bpe.co.uk.

The talk, sponsored by the Cheltenham based commercial law firm, is part of the Cheltenham Design Festival, which takes place on Friday 4^th and Saturday 5^th April.  Kirsty, who has been working for the Williams F1 Team for six years, will take time to explain how a Formula 1 car works, how long it takes to make one, the miracle that is carbon fibre and how has it transformed motorsport and why design is key to keeping F1 drivers safe on the racetrack.

“We have supported the Cheltenham Design Festival since it began,” explains Edwina Young, Solicitor at BPE, on the eve of the eagerly-anticipated Australian Grand Prix. “It’s an innovative, exciting and fast growing festival for Cheltenham, and we are looking forward to sponsoring ‘The Williams F1 Story’ event. It should be a really interesting talk, especially for anyone keen on the sport and its technological advances, bearing in mind Formula 1 has largely entered the unknown this year due to revolutionary rule changes.”

Cheltenham Design Festival is an annual festival celebrating how original thought can change the world. It has built up a national reputation and gives people of all ages chance to explore their creativity. Any local business interested in attending the event for free should email fay.daniels@bpe.co.uk or tweet ‘Formula 1’ to @BPE_Solicitors.

Tickets for the event are on sale now and can be bought through their website –www.cheltenhamdesignfestival.com or by calling 0844 576 2210.

Philip Radford offers his top tips: 

• Get a good understanding of the characteristics of the particular mark that you wish to purchase and its quirks and challenges. Much of this information is now freely available on the internet, or from the secretary of classic car owners clubs.

• Having chosen your classic car, investigate the prices that are being paid for such a classic and have been paid at auction in the last few years. Auction houses keep tables of sale prices and classic car magazines have comprehensive prices tables which will give plenty of useful information.
  
  
• Identify a specialist mechanical engineer who can advise you about your proposed classic purchase and who can carry out an inspection before the purchase, and establish its condition. Once again, these can be identified from classic car magazines, or classic car owners clubs.

• Investigate if the seller actually owns the classic car being purchased, in other words has a good legal title and is in a position to sell it, in other words is not bankrupt or has entered into a finance agreement.

• Consult with a specialist lawyer, who can advise you on terms of purchase that you should impose if buying privately, or if buying at auction what the auction terms actually mean! They may also have a stable of specialist motor engineers, who they have knowledge of, to assist in the investigations and in obtaining a written valuation that you are likely to need following the purchase for insurance purposes! 

February was an extremely busy month for the team and we all know that March is busy professionally for our sector (what with Ecobuild, MIPIM and many Gloucestershire events for our local contacts – Gold Cup Week anyone?).  Nonetheless we hope you will find time to read and enjoy our newsletter as it is crammed with practical advice for people from all corners of the construction industry.

What have we been up to?

February 2014 made a very busy January actually look relatively quiet and we had numerous new instructions and several old matters came to a head.  Highlights of the month include:

• Meeting with Curtins Consulting to discuss a very exciting seminar we’ll be running later this year
• Presenting to the Trussed Rafter Association on Collateral Warranties
• Negotiating on three different anaerobic digestion renewable energy plants – all at the same time!
• Dealing with the scorpion of the construction world…. a letter of intent
• Advising on the merits of applying for an access order to enable a client to carry out vital work

Those paying close attention may notice that employers often like to delete the following words from standard (JCT) contracts: “the Employer’s interest in the Retention is fiduciary as trustee for the Contract (but without obligation to invest)”.  It’s apparently the norm to delete these words (which begs the question as to why the standard forms persist in including them) but what is “fiduciary interest” anyway?

A fiduciary relationship is one in which A acts on behalf of B in circumstances giving rise to a relationship of trust and confidence.  Allowing the Employer to hold back anywhere between 2-5% of money he acknowledges you are owed, certainly shows a degree of trust placed by the Contractor in the Employer.  Contractors are trusting Employers not to run off with the money, and to pay it back at the appropriate time.

That position remains, even with the word “fiduciary” omitted.  What is reduced is the obligation for the Employer to comply with the four key fiduciary duties:

1. No conflict
2. No profit
3. Undivided loyalty
4. Confidentiality

For most Employers, that is a step too far.

In summary, it is very common to delete the “fiduciary” wording within standard form contracts, and contractors and employers should be mindful that even with this amendment, retention is due to the contractor in the same way as any other sum due under the contract.

To download the full newsletter please click here 

In September 2012, 6 months after buying my first house, I got planning permission to add an upstairs on top of an existing single storey (flat roof) extension.  This would allow us to add a third bedroom and an upstairs bathroom, but necessitated a re-wire, re-plumb, new boiler and re-locating the stairs.  Simple!  What follows is a shortened version of a blog entry I wrote in May 2013….

I have not overlooked the fact that, as a construction solicitor, I will be in for quite some mocking if this project goes wrong and I have inadequate recourse against my builder/professional team.  However, now that I am in the client’s shoes, I am starkly reminded that clients often do not want a heavy handed, lengthy, complex document – and a local builder most certainly will not!

I suggested to my builder that we use the JCT Homeowner contract – an “industry standard” 11 page contract that is written in “plain English” and is very much intended to be used without legal advice.  I can’t say I’m a fan of the contract and to be honest it didn’t do what I wanted it to, but I initially made the mistake of thinking that as it is “industry standard” my builder would sign up to it and that something would be better than nothing.

Luckily as it turns out, my builder wasn’t a fan either.  So I decided to start with a blank piece of paper.  Around this time I started tweeting with Sarah Fox and I learnt a bit more about her 500 Word Contract™*.  This was really useful timing for me as it helped me to focus and make sure I included all the vitals in my contract.  I was actually rather proud to have drafted a contract that, on final revision, is only 374 words long.  I was delighted that Sarah agreed that it seemed to be a good contract!

Going back to basics has been an interesting exercise given that much of my day job revolves around a contract that (as I learnt [around that time]) is 85,000 words long in its standard form and, on average is amended by a 20,000 word Schedule of Amendments.  That makes my contract, with a word count just 0.36% of that combined total, look potentially inadequate.  Hopefully over the next few months I will prove that less is more.

*The 500 Word Contract™ is Sarah’s concept and is a training tool that she is working on.  You can read more about it here – www.500words.co.uk

Post script: The building project is complete.  I am delighted with the work but please don’t ask me if it was on time or on budget.

The terms “best endeavours”, “all reasonable endeavours” and “reasonable endeavours” frequently appear in contracts. While there may be uncertainty between the endeavours, contract drafting would be a great deal harder without them.

Distinguishing the types of endeavours:

“Best endeavours”

Satisfying a "best endeavours" obligation does not require a party to take steps that would result in bankruptcy or liquidation.  That said, it can still cause you to make a loss on the job.  A party should exhaust all reasonable courses which could be taken. A "best endeavours" obligation can require the party under the obligation to risk success or failure where there is a reasonable prospect of commercial success.

“All reasonable endeavours”

An "all reasonable endeavours" obligation does not always require sacrificing commercial interests; commercial context dependent.

“Reasonable endeavours”

A "reasonable endeavours" obligation does not require a party to disadvantage itself unless the contract specifies that certain steps have to be taken in performance of the obligation. "Reasonable endeavours" applies an objective standard of what a competent person might do in the same circumstances. In Rhodia International Holdings v Huntsman International [2007] the obligation to use “reasonable endeavours” only required the obligor to take one reasonable course of action and not all of them, in contrast to an obligation to use “all reasonable endeavours.”

Advice

It is advisable to make any pre-condition an absolute obligation by using the words “shall” or “must”.  If the parties to a contract containing endeavours clauses do not make the objective of the clause clear, they could be deemed unenforceable for lack of certainty because there is no reasonable way to measure a party’s attempt to fulfil their obligation.

The key to negotiating contract successfully is to understand what you are asking for, rather than blindly to refuse or require certain wording.  As with most commercial situations, the interpretation of the words depends on the circumstances so you should adapt your approach accordingly and not have an unmoveable policy on endeavours.

If you have any questions please do not hesitate to contact Katie Pickering, Paralegal, on 01242 248215 or katie.pickering@bpe.co.uk.

Many people assume that advertising regulations are only designed to protect consumers, and that traders are largely considered to have enough knowledge and business sense to look after themselves when it comes to marketing. This is not the case. Whilst not quite as comprehensive or onerous as consumer advertising regulations, those who advertise their goods and services to other businesses are obliged to comply with certain obligations. Two of the golden rules to follow are set out below:

1. Advertising must not be misleading

An advert will fall within this category if:

1. it deceives, or is likely to deceive, the businesses to whom it is directed; and
2. the deception impacts upon the businesses’ “economic behaviour” or injures a competitor. In layman’s terms, would the deception cause a business to buy a product it would not otherwise have purchased? Does it damage a competitor’s reputation?

Take for example an advert claiming the price of an item is an “introductory offer – limited time only”. If the advertiser had no intention of increasing the price of this product after its introduction then this statement would be considered to be misleading.

1. Comparative advertising is only allowed in certain circumstances

If you compare your products to those of another party, make sure that the products that you compare meet the same needs / purpose as one another. An electric socket will obviously not be able to meet the same lighting requirements as a lamp! You will also need to take care not to confuse traders, leading them to believe you are selling your competitor’s products or are otherwise linked to your competitors. There is no universal prohibition against comparing your prices to those of a competitor, just make sure that you are not seen to be passing yourself off as that competitor.

If in doubt, put yourself in the shoes of the person at whom you are directing your advertisement. How would they interpret it?

This is not an exhaustive list by any means, but should be a step in the right direction when writing your next advertisement. If you have any questions regarding business advertising regulations then please contact Edwina Young at edwina.young@bpe.co.uk or on 01242 248251.

To download the full newsletter please click here.

When you first think of a pre-action protocol without prejudice meeting, you may automatically think about an adversarial war of words.  In my experience, the parties are primed before the meeting to expect such.  Is this really the point of the meeting and/or should it be?

Turning to the pre-action protocol itself, paragraph 5 states that the objective is to:

“agree… the main issues in the case, to identify the root cause of disagreement in respect of each issue, and to consider (i) whether, and if so how, the issues might be resolved without recourse to litigation, and (ii) if litigation is unavoidable, what steps should be taken to ensure that it is conducted in accordance with the overriding objective as defined in rule 1.1 of the Civil Procedure Rules.”

Rule 1.1 is a reference to furthering the Overriding Objective, which aims to enable “the court to deal with cases justly and at proportionate cost.”

None of this sounds particularly confrontational, does it? Then why do parties invariably approach it as such? Well, for a number of reasons:

(i)     Clients like their lawyers to have teeth and this may be the first time they have seen their lawyers “in action”.  It’s rather cathartic for clients to see that they’ve hired a Rottweiler.  Indeed, many mistakenly equate bark with bite and happily pay good money for such behaviour (psychological reason);

(ii)    The lawyer may decide to ham it up in front of his/her client and/or may be deliberately obtuse to see what substance the other side has to their arguments (more psychological reasons);

(iii)   Some lawyers like “fee creating” so that the parties are forced into litigation (it still happens, unfortunately); or

(iv)   Laziness/arrogance on the part of the lawyer and/or the client (normally, a defence mechanism for a poor case resulting in bare denial).

In the age of costs proportionality and Precedent H cost budgets, we lawyers have to work smarter. This is where the application of de-construction and de-stabilising techniques, such as those employed by trained and seasoned mediators are hugely beneficial. They help to get to the root of the issues and clear the red mist that may have descended during the letter of claim and response.  To be blunt, it comes down to the party representatives having the skill set to detach and approach the issues from 10,000ft – using Scott Schedules to capture the essence of arguments on both sides is a useful case management tool, I find.

Using mediator techniques, even as a party representative, can help unblock apparent stalemates.  When all around you are losing their heads, it can sometimes be good to focus attentions on what each party needs to get from the resolution of the dispute.  Puritans will scoff at this blurring of roles, but I don’t think we can necessarily rule out this type of approach.  If you need to shout to get your point across then it’s probably a weak one.  Equally, a well-timed cross word can do wonders for focussing your opponent’s attention, so I won’t rule it out completely.

Dismiss it as a Jekyll and Hyde strategy if you will, but let’s not forget paragraph 5 or the Overriding Objective post Jackson reforms.  Employ a third party mediator if you wish and hold a mediation in lieu of the traditional inter-parties meeting.  But there is another alternative and it involves employing a lawyer with mediator skills to represent you.  In the end, the latter may be better value and enhance your chances of a timely and substantial settlement in your favour.  What’s not to like?

To find out more please contact Jon Close on 01242 248278 or jon.close@bpe.co.uk

To download the full newsletter please click here.

To explain to you the importance of achieving practical completion would be to tell you all how to suck eggs.  This article is being written during Lent so eggs, for many, are off the menu anyway.  I will therefore cut to the chase.

If “practical completion” is the aim of all building projects, why does the JCT fail to define it? Perhaps it is deemed simply too obvious to require a definition.  JCT puts the onus on the Architect/Contract Administrator to certify when the works have, in his opinion, “achieved practical completion”.  PC cannot be certified unless the as built drawings and relevant information for the Health and Safety file have been provided.  The JCT SBC sets out the obligations on the Contractor during the DLP but doesn’t actually have a specific provision for dealing with snagging.

Given the potential complications that can arise from “partial possession” and “early use”, not to mention issues of sectional completion, coupled with the significant consequences of late practical completion, I for one am amazed that such a woolly situation persists.

You would do well therefore, to give your own definition of “practical completion” in each contract.  Some legal resources suggest reference to when the building project is “capable of beneficial occupation and use”.  In my opinion, that leaves two questions: (1) Use as WHAT exactly; and (2) what if the contract is for shell only, with fit out being carried by someone else?

To be clear, it is not my intention to encourage people to be so prescriptive as to devalue the input of the architect/contract administrator.  My point is simply that you need to clarify the definition in order to avoid an argument (or make any such argument easier to resolve).  With so much riding on the precise date of PC, and given that the whole purpose of the project is to get to that point, it probably deserves a little more of your attention at the start.

If you have any questions about using definitions in contracts, or how to resolve disputes arising, please contact Anna Wood – anna.wood@bpe.co.uk or 01242 248215.

Those paying close attention may notice that employers often like to delete the following words from standard (JCT) contracts: “the Employer’s interest in the Retention is fiduciary as trustee for the Contract (but without obligation to invest)”.  It’s apparently the norm to delete these words (which begs the question as to why the standard forms persist in including them) but what is “fiduciary interest” anyway?

A fiduciary relationship is one in which A acts on behalf of B in circumstances giving rise to a relationship of trust and confidence.  Allowing the Employer to hold back anywhere between 2-5% of money he acknowledges you are owed, certainly shows a degree of trust placed by the Contractor in the Employer.  Contractors are trusting Employers not to run off with the money, and to pay it back at the appropriate time.

That position remains, even with the word “fiduciary” omitted.  What is reduced is the obligation for the Employer to comply with the four key fiduciary duties:

1. No conflict
2. No profit
3. Undivided loyalty
4. Confidentiality

For most Employers, that is a step too far.

In summary, it is very common to delete the “fiduciary” wording within standard form contracts, and contractors and employers should be mindful that even with this amendment, retention is due to the contractor in the same way as any other sum due under the contract.

Whilst such agreements have often been perceived as something only the very wealthy consider, they are increasingly popular with couples who marry later in life, have children from an earlier relationship whom they wish to provide for, or an emerging business to protect.

At the moment, couples entering into such agreements cannot automatically enforce them if their relationship breaks down. The Court still retains the ability to make financial orders which may not reflect what the couple originally agreed. It will only follow the terms of the agreement if it considers those terms are fair to both parties and any children of the relationship.

The Law Commission has now recommended that couples should be able to enter into contractually enforceable agreements prior to (or during) marriage. Such agreements would determine how couples share any property they own at the time of marriage or may receive in the future, such as through an inheritance, should they separate. This may include providing for some or all of their property to be excluded from the matrimonial pot or for it to be shared in unequal proportions. The Agreement will be binding but only after taking the needs of the separating couple and any children into account.

The couple would also each need to have independent legal advice and information about the other’s financial situation before entering into the agreement. They would both need to sign a statement confirming they have understood the agreement will partially remove the court’s ability to make financial orders. The Commission also recommends that the agreement would need to be made at least 28 days before the wedding.

The Government will now consider the Commission’s recommendations and decide whether there should be a change in the law. However, the exception of “needs” proposed by the Commission will still leave an element of uncertainty for couples, who would be wise to regularly review any agreement, to ensure it still meets their needs should the worse happen.

For more information, contact Helen Cankett, Associate Solicitor in the Family team at BPE Solicitors LLP on 01242 248256 or email helen.cankett@bpe.co.uk 

Whilst the loss of trade is bad enough for employers, there may be further bad news on the horizon if proper procedures aren’t followed in relation to employees affected by the floods. Below we cover some questions we have been asked by employers over recent weeks.

Do I have to pay employees who cannot get to work due to floods?    

Possibly!

Generally, if an employee fails to attend work, they are not entitled to pay. However, it does depend on the particular circumstances. So, check the employment contract, your staff handbook (if contractual) and any collective agreements to ensure there is no entitlement to pay. Also, if historically you have always paid staff in such situations, employees may have an implied right to be paid.

In any event, this could be a commercial, rather than a legal decision, due to the effect withholding pay could have on employee relations, potential negative publicity and the fact that you may simply encourage employees to falsely call in sick.

Ideally, introduce a policy which sets out how you will deal with adverse weather and other major travel disruptions, publicise this internally and stick to it.

What about employees who need time off to look after children?

Employees have a statutory right to “reasonable” (unpaid) time off where there is an unexpected disruption or termination of care arrangements, such as school closures.

What if I have to close my business temporarily?

If your employees’ contracts contain mobility clauses, you could potentially send employees to a different site or workplace. You may allow employees to work from home. Alternatively, you could ask employees to use (paid) holiday to cover the absence.

Whistle-blowing

A recent case found that e-mails from an employee regarding the potential danger of driving in snow could be classed as a “protected disclosure” under whistleblowing regulations. E-mails or other communications from employees or workers regarding driving through flood waters could be viewed similarly, so act with caution if they raise concerns and, if necessary follow your whistle-blowing policy.

Sarah Lee Employment Associate Solicitor sarah.lee@bpe.co.uk Phone: 01242 248261

What have we been up to?

January 2014 saw the team mainly dealing with new instructions but we have also made exciting progress on existing matters.  Highlights of the month include:

• Reached advantageous settlement for our client in a professional negligence claim relating to asbestos
• Read a report on an adjudication of a matter with facts which were scarily parallel to those of a dispute we are currently advising on, and which happily supports our client’s case
• Attended a meeting about the ongoing progress on the new development of a GP surgery, which we have been advising on for over two years now
• Took on a number of Party Wall matters
• Advised on contracts relating to an exciting project in Quatar

EVERYMAN THEATRE

BPE Solicitors LLP is a proud sponsor of The Everyman Theatre, Cheltenham.

www.everymantheatre.org.uk

LINC

The firm is proud to to support LINC - The Leukaemia & Intensive Chemotherapy Fund.

ST JOHN AMBULANCE

St John Ambulance is one of BPE's annual charities and is supported with a number of fundraising events held by staff throughout the year.

http://www.sja.org.uk

MENINGITIS NOW

Meningitis Now is one of BPE's annual charities and is supported with a number of fundraising events held by staff throughout the year.

www.meningitisnow.org

VOLUNTEER WORK

Our view is that voluntary work is worth the effort. Many of our staff appear to agree as they give up hours of their spare time to support the communities in which they live and work.

Supporting the Community

School governors, scout leaders, charitable trustees and unpaid fundraisers all work for BPE Solicitors LLP.

The organisations they work with may be different but our staff all share one thing in common – a desire to put something back into the community in which they live and work.

WORK EXPERIENCE

Undergraduates studying at universities across the country benefit from the firm's work experience programme. Spending a week at our office, students have the opportunity to work alongside solicitors and support staff in different departments.

If you are a student wanting further information on our work experience programme contact Alex Workman on alex.workman@bpe.co.uk

“Mediation sessions offer a safe, confidential and supportive environment in which couples can discuss future arrangements for their children and finances”, explains Helen. “It gives them complete control of any future arrangements, in contrast to Court proceedings where a Judge will dictate what must happen, which can leave many couples feeling dissatisfied and resentful.”    

During the meetings, the mediator is completely impartial and so cannot give any legal advice. However, the mediator can provide couples with a wealth of information about the law which often helps them come to a mutually satisfactory arrangement without needing to involve the Court.

Helen continues, “To begin with, couples would have an individual “intake session” to discuss the benefits of the process, and to assess the suitability of mediation for their particular situation. If they then decide to go ahead, the first joint session will be arranged. . It is usual to need two to three joint sessions to cover everything. Then, if an agreement is reached, written summaries will be provided and can be passed to your solicitor to be converted into the appropriate Court documentation.”

Helen is formally recognised by the Family Mediation Council in “All Issues” Mediation.

To find out more about the process, please contact Helen on 01242 248256 or email helen.cankett@bpe.co.uk   

The deal brings together two of the most respected names in the UK window and door hardware markets, with Caldwell UK’s Managing Director, Alistair MacAulay, describing it as strategically ideal for both businesses. Cotswold Architectural Products was the first window hardware company in the UK to manufacture friction and supplies clients in 56 countries.    

Tim Ward, Partner at BPE, commented, “This deal is significant for Cotswold and Caldwell UK. Both businesses have built up their respective customer base and product range over previous years and are now well placed to service the UK market and support Caldwell’s global business. It is great to see their hard work coming to fruition.” 

The sale of Cotswold Architectural Products Ltd comes just eight years after BPE advised Lesley McDonough and Iain Morgan on the initial purchase of the company, which in the interim has gone from strength to strength. 

Iain commented, “We have a longstanding relationship with BPE, especially the Corporate team, so we knew we could rely on them to handle the deal professionally and within the timescales needed. Lesley and I are thrilled with the work they have done and are excited about the future working with Caldwell. We would not hesitate to recommend Tim and the team.” 

Even now the sale is completed both vendors will retain an involvement in the business, by providing the new owners with invaluable support and assistance during the post-acquisition period. 

Caldwell UK is a subsidiary of Caldwell Manufacturing Company North America LLC which has its headquarters in Rochester, NY, USA and has been in existence since 1888.   

Battery powered e-cigarettes, (which can often look like real cigarettes not least because they enable the participant to blow out ‘smoke’) are largely odorless and contain some of the addictive substances found in regular cigarettes (including nicotine), but apparently without the smoke and the smelly fingers.  When heated by the battery e-cigarettes produce a vapour that can be inhaled – hence the term “vaping”.

So why should anyone care?  Maybe you are an employer who has been asked if staff can “vape” in the office or at work; maybe you are a co-worker who disagrees with “vaping”; or maybe you are a “vaper” yourself and wonder what to make of all this, if anything.

Opinion seems to be split.  The pro-vapers argue that because e-cigarettes do not contain any tar, omit smoke or allegedly present the risk of passive smoking (based on the limited medical information currently available), they should be actively encouraged as a potentially “healthy” alternative to regular smoking, even helping people quit altogether.  That should be promoted shouldn’t it?  But the anti-vapers (a term, which I think would befit a Star Wars film) say that “vaping” is off-putting, that too little is known about the real effects of “vaping” to determine the long term health implications and in some cases there is concern that it might even encourage non-smokers to take up “vaping”.

The British Medical Association has agreed that e-cigarettes should be included in the smoking ban, but as yet, there has been no indication that the Government intends to legislate in this area.   So until then, what should employers do?  Well ACAS’ guidance is unfortunately not conclusive.  We would recommend that as a minimum a discussion is had with staff and co-workers.  Garner views and give consideration to preparing some kind of a policy on “vaping” (for example, will you allow it in the workplace?), so if, or when, the issue does arise, whilst you may not have all the answers, you are ready to deal with it.

All in all, “vaping” has reminded me not only that I am starting to get old, but also of the importance of keeping up with the times. With this in mind, employers should make sure that they regularly review their contracts, policies and procedures to check that they too are not reflecting their age!

Chris Aldridge Employment Solicitor chris.aldridge@bpe.co.uk Phone: 01242 248431

In preparation for the introduction of EC, we have highlighted some of the key points employers must know:    

1. Before lodging a claim at the Tribunal, a prospective Claimant has to provide certain information to ACAS on either a prescribed EC form or over the phone (currently, this appears to be optional from 6 April, but becomes mandatory on 6 May 2014). Unhelpfully, there is only a requirement for the Claimant to provide basic details about themselves and the Respondent and they do not have to include details of their potential claim(s).
   
   
2. The relevant time limit for filing a claim to the Tribunal (normally 3 months for most claims) will then freeze until following the EC.
   
   
3. Discussions between the parties during the EC process will continue for one month in an attempt to negotiate a settlement. At this stage, the Claimant is not yet required to pay a Tribunal fee or contribute towards to cost of the negotiations. Importantly, the EC discussions with ACAS will be “without prejudice”, which means that cannot be later referred to during any future Tribunal proceedings.
   
   
4. If settlement is not reached after a month, a further two week extension can be given if agreed by both parties. However, this would normally only be used where parties are close to a settlement and the extension can only be used once.
   
   
5. If ACAS cannot achieve a settlement, they will issue an EC “certificate” to the prospective Claimant, who can then pay the relevant fee to the Tribunal and file a claim.

The early feedback prior to the introduction of EC has been mixed. Some employers claim that the freeze on the normal time limits during EC means that Claimants could in effect have nearly an extra month to file their claim. More positive commentary has been given to the fact that employers may themselves apply for EC intervention if they have a problem at work which they believe may lead to a Tribunal claim if not resolved internally (although strictly speaking employers can do this at the moment).

The question of whether EC will encourage early settlement of claims is still very much a matter of opinion. Generally it would be more beneficial for a Claimant to encourage settlement before they have to stump up a fee (a minimum of £160) to file their Employment Tribunal claim. The opposite could be said for employers, who, if they were to tactically consider their options, and depending on the merits of any claim, may refuse to attempt settlement during the EC process in order to ascertain just how serious a prospective Claimant is about their claim. Also, employers may want to avoid giving the impression that they are worried about particular allegations in case this inflates a potential Claimant’s expectations when it comes to a financial deal. Only time will tell whether the EC process achieves its goals (which, some cynics may say is simply to save the Government more money).

Should you require any further information on this topic, please do not hesitate to contact us.

Sarah Lee Employment Associate Solicitor sarah.lee@bpe.co.uk Phone: 01242 248261

It will not always be reasonable to dismiss someone simply because they have been charged with a criminal offence, especially as they may later be cleared of charges after an investigation or a Court case, as for William Roache and Dave Lee Travis earlier this month.

Importantly, the need to identify a fair reason for dismissal should not be overlooked.  In a recent case the Employment Appeal Tribunal dismissed a school’s appeal against a finding of unfair dismissal in respect of a caretaker, who had been the subject of an allegation of abuse and then dismissed for some other substantial reason (“SOSR”).

The EAT emphasised that the reason for considering dismissal for SOSR must be “…of a kind justifying dismissal…”.  Its view was that SOSR should not to be used as a convenient label to stick on any situation where an employer feels let down, or a misconduct reason is not obviously available or appropriate.

Due to this, an employer’s disciplinary policy should give it the express right to potentially dismiss in cases where an employee is convicted of a criminal offence. However, notwithstanding such provisions, an employer should still identify how any conviction or allegations could adversely affect its reputation or its relationships with other staff, customers or the public (or otherwise affect an employee’s suitability to continue to work for the employer) before moving towards a dismissal.

Remember, even if an employee is convicted of a criminal offence and imprisoned, any dismissal will normally be unfair unless you have followed a fair process and identified a fair reason for the dismissal.

Each case needs to be considered carefully on its own facts and employers should avoid a knee-jerk reaction. Bear in mind that as a matter of criminal law, the individual is not guilty until they have been charged and convicted. Having said this, if the allegation is serious and has made it into the public arena, employers may need to act quickly and could also be under pressure from shareholders, the public or the media.

Overall, employers should consider the issues in detail and seek early legal advice. What the arrest is for and what the employee’s role is will be key issues to take into account in determining the best course of action for both the employer and the employee.

Jaime Gay Employment Legal Assistant jaime.gay@bpe.co.uk Phone: 01242 248252

It is well known that in straight-forward unfair dismissal claims the current worst case scenario for employers should they lose at a Tribunal is a “basic” award (calculated in the same way as a statutory redundancy payment) and a “compensatory” award to the Claimant of £74,200 or 1 year’s wages, whichever is the lowest. This gives employers some certainty when attempting to assess their possible exposure for any given claim. However, the potential value of unfair dismissal compensation is theoretically unlimited when a Claimant introduces whistleblowing or discrimination allegations to a claim.    

A Policeman called Mike Baillon made the news a few weeks ago after being awarded a reported £440,000 by an Employment Tribunal.  PC Baillon alleged that as a result of an on duty incident in 2009, he became a laughing stock and was forced to leave the Police because of this.

The incident in question was the now infamous moment when PC Baillon stopped a civilian pensioner’s Range Rover and struck the windscreen up to 15 times with a baton, whilst his colleague climbed onto the bonnet of the vehicle and attempted to kick in the windscreen. Footage of the incident was leaked online and the clip has now been viewed thousands of times on Youtube.

Although both the PCs in question were internally cleared of misconduct, PC Baillon was removed from front line duties for a period of time.  Also, his colleagues did not seem to want to let him forget about what happened.

The large award has come as a shock to many and the national redtops have had a field day on the “compensation culture” that has allegedly engulfed the UK. Look beyond the headlines, however, and the real reason for the figure is more understandable.

Whilst the full judgment on the case has not yet been made available, it is understood that PC Baillon alleged some form of whistleblowing in his claim. This could be the reason that the normal cap of £74,200 has been avoided in this instance. Press reports claim that the compensation was apportioned as £430,000 for loss of pension and £10,000 for loss of wages. Whilst we cannot confirm these figures until we have seen the judgment, a large pension loss such as this is not uncommon where a final salary pension was in place.

This case is an important reminder to employers that consideration must be given to any such pension losses when calculating potential liabilities should they ever have the misfortune of a Claim Form dropping through their letterbox.

We are currently awaiting the Employment Tribunal judgment. However, should you require any further information on this matter, please do not hesitate to contact us.

Heyma Holmes Employment Solicitor heyma.holmes@bpe.co.uk Phone: 01242 248253

So all in all, an employer is by no means guaranteed to be able to recoup the costs they have incurred if they successfully defend a Tribunal claim.  However, an employer’s chances have got to be drastically increased if a Tribunal finds that a Claimant has lied as part of their evidence? Doesn’t it?

Whilst you may think that the answer to the above question should be yes (surely there is no better reason to award costs?), a recent decision of the Employment Appeal Tribunal suggests otherwise.  Here, the EAT overturned an award of costs (totalling £8,900) against a Claimant after she was found to have effectively lied in Tribunal.  The EAT disagreed with the approach taken by the Tribunal, which amounted to a statement along the lines of “without more, to conduct a case by not telling the truth is to conduct a case unreasonably, it is as simple as that”.  Overall, the Tribunal felt that to lie is unreasonable and, therefore, would justify costs being awarded on almost all occasions.  It was this “a lie will automatically mean that you will be penalised by costs” approach that the EAT had difficulty with.

It was the EAT’s view that what Tribunals should actually do is assess whether a Claimant’s bending of the truth is sufficient enough to justify an award of costs.  It directed that a Tribunal should look at the surrounding circumstances, together with the gravity, nature and effect of the lie to determine the reasonableness of the Claimant’s conduct.  So, whilst the EAT was not saying that lies will never justify costs, it is advising that a Tribunal needs to be careful not to automatically assume that they always will and instead think about whether costs are appropriate in the circumstances.  For example, a Tribunal may have to assess whether a lie came about due to a conscious decision to deceive the Tribunal or simply because a person got confused because of the stress of being cross-examined as a witness.

The EAT has sent back the above case to the Tribunal to rethink whether costs are actually justifiable.  You would hope that the Tribunal will easily be able to do this, and will simply be able to alleviate the EAT’s concerns by setting out how they concluded that two plus two does equal four!

Unfortunately, this case highlights the fact that an employer cannot always guarantee to be awarded their costs in relation to claims that they win, or even where a Claimant is found to have told a lie.  More importantly, employers should remember that the rules in relation to costs apply equally to them as they do Claimants.  Employers should, therefore, encourage any of their staff who are giving evidence at Tribunal to be as truthful as possible at an early stage.

Matthew Burton Employment Partner matthew.burton@bpe.co.uk Phone: 01242 248281

Amid all the confusion, the facts of the matter leaked out. Mr McDermott had actually been dismissed by the lawyers of soon to be new owner of Leeds United, Massimo Cellino (a man who has sacked no less than 35 managers in 21 years of football ownership!). However, it transpired that Mr Cellino was not yet installed as official owner of the club and neither he, nor his legal team, had the authority to dismiss anyone, let alone the manager. Queue a hasty phone call from the proper owners to Mr McDermott, the following morning, confirming that he was still Leeds United’s manager.    

But what if Mr McDermott had decided enough was enough and walked away from the club, citing the previous night’s call as confirmation of dismissal? In such a situation, Mr McDermott would need to satisfy that he genuinely believed that Mr Cellino had had the authority to dismiss him. This might prove difficult if his contract of employment set out who did and did not have such authority. On the other hand, the confusion over the takeover by Mr Cellino could have been used as an argument in the manager’s favour. Overall, an Employment Tribunal would end up looking very closely at the facts of the case before making any judgment.

At the time of writing, Mr Cellino is still not the official owner of Leeds and is awaiting clearance from the Football League before officially taking over. Mr McDermott has returned to the club and announced his intention to stay, stating that he will not resign. No doubt Mr McDermott will therefore be avoiding answering calls or opening his post for the few months after any takeover.

And the 30,000 fans that turn out every week to loyally support their team, well they are probably the real losers in all of this.

Pav Clair Employment Solicitor pav.clair@bpe.co.uk Phone: 01242 248221

What defines gross misconduct has been the subject of countless Tribunal claims over the years, however what is clear is that any such misconduct must so bad that it breaks the bond of trust and confidence between the employer and employee. Examples of gross misconduct are usually stated in staff handbooks or contracts of employment, but a recent case has shown that just because certain misconduct is listed in a handbook, it still must adhere to the basic principles of contract law and justify dismissal.

In RBW Ltd v Knight, Mr Knight’s contract stated that “theft of company property” and “any breach of employer’s or customer’s security rules” were two instances that would amount to gross misconduct, entitling RBW to terminate his contract without notice. This was important because upon inspection of Mr Knight’s van, a bag of bolts was found that did not belong to him. Mr Knight argued that he had found the bolts and simply forgotten to hand them in. Following an investigation, he was summarily dismissed for theft and removing goods, contrary to the security rules     

Mr Knight brought unfair and wrongful dismissal claims, arguing that the above conduct did not constitute a fundamental breach and as a result he should not have been dismissed without notice. In their defence, RBW relied upon the clauses in Mr Knight’s contract as justification for summary dismissal, arguing that the clauses contained no mention that any such breach must be more than minor or irrelevant. However, the Employment Tribunal sided with Mr Knight and ruled he had been unfairly and wrongfully dismissed.

On Appeal, the Employment Appeal Tribunal confirmed the Tribunal’s decision. Particular attention was paid to the clause stating that “any breach of employer’s or customer’s security rules” would justify summary dismissal. It was the EAT’s conclusion that to interpret such clauses as giving an employer the right to dismiss for any such conduct, however minor, would go against the normal principles of employment law.

This case shows the need for careful drafting in disciplinary and contractual termination provisions in employees’ contracts and handbooks. Also, in every case of potential gross misconduct, employers should carefully consider whether they could justify a dismissal being within a band of reasonable responses (reasonable being a Tribunal’s favourite word).

Steve Conlay Employment Paralegal steve.conlay@bpe.co.uk Phone: 01242 248444

The move to a fee system in 2013 was met with dismay by Unions who declared the move “draconian” and a “roadblock to justice”. In turn Unison indicated their intention to request a Judicial Review of the fee procedure. The request came to fruition in October 2013 when Unison, backed by the Equality and Human Rights Commission, were granted a Judicial Review Hearing to decide the question of whether such fees were unfair to Claimants and so should be done away with.

On Friday 7 February 2014, the High Court finally handed down its judgment, ruling that there was not enough evidence currently available to decide on the matter and that the proceedings were brought prematurely. This was despite Unison arguing that there had been a fall in claims of between 50% and 80% since the introduction of the fees. The Court did, however, indicate that a future challenge may be possible if Unison can provide actual rather than hypothetical examples as to how the system was restricting claims.

Unison has announced their intention to appeal the Judgment. We will keep you abreast of any further developments in this area, but for now at least the fees are here to stay.     

Lisa Gettins Employment Partner lisa.gettins@bpe.co.uk Phone: 01242 248237

31 January 2014 (unless stated otherwise): TUPE Regulations        

After extensive consultation, the main changes to be made to TUPE will now be as follows:

• For employees to transfer under TUPE’s “service provision change” rules, activities carried on post-transfer must be “fundamentally the same” as those activities carried on before transfer.

• The requirement to provide “employee liability information” will have to be given at least 28 days before a transfer (with effect from 1 May). This replaces the current requirement of 14 days.

• A change in workplace location following a TUPE transfer may now be considered an “economical, technical or organisational” reason and will not lead to an automatic unfair dismissal finding.

• Employers may vary terms under a collective agreement one year after a TUPE transfer, provided that the variations are no less favourable to the affected employees. There are some important caveats to this, so please proceed with caution.

• Subject to complying with certain rules, it will be possible for transferees (i.e. those receiving staff via TUPE) to start collective redundancy consultation with transferring employees prior to a transfer.

• An exemption from the need to elect employee representatives for “information and consultation” purposes will be introduced for employers with fewer than 10 employees (with effect from 31 July).  Instead, small employers will be able to inform and consult directly with their staff.

6 April 2014:  Early conciliation

The Enterprise Regulatory Reform Act 2013 will introduce a new mandatory ACAS pre-claim conciliation procedure. As a result, before submitting a claim to an Employment Tribunal, Claimants will have to lodge details of their claim with ACAS, who will attempt to facilitate a resolution of the dispute for a period of one month. If, after the month, no resolution has been achieved, the matter can proceed to Tribunal. Whilst such conciliation is on-going, the time-limit clock for bringing a Tribunal claim will be stopped. However, the pessimists (or rather realists) among us believe that this may generate additional disputes about whether time limits have been complied with where a settlement is not reached and the “clock” is restarted.

6 April 2014:  Financial penalties for aggravating employers

Employment Tribunals will have discretionary powers to impose additional financial penalties on employers where their breach of an employee’s rights include “aggravating features” such as negligence or malice.  Penalties will be between £100 and £5,000 but may be reduced by 50% if an employer pays within 21 days.

6 April 2014:  Discrimination Questionnaires, gone

Have you ever sent or received an Equality Questionnaire? No, not many people have, which is perhaps why the Enterprise and Regulatory Reform Act 2013 effectively scraps the Equality Questionnaire process (which can be costly and time consuming to comply with).  However, potential Claimants willstill be able to raise questions with their current/ex-employer after April (but there will no longer be a clear statutory framework for doing so).

6 April 2014:  Flexible working for all (well, for most)

The right to request flexible working is being extended to all employees (not just parents or carers) who have 26 weeks continuous service. The current statutory procedure for considering requests will also be replaced with two basic requirements, namely that employers deal with flexible working requests in a reasonable manner and notify employees of their final decisions. Requests may still be refused on business grounds.

The Government is also considering the possibility of shared parental leave, but this will be implemented (in some form) at a later date.

This is currently under review and maybe subject to change. Watch this space!

Spring 2014 - Need a health kick?

A health and work assessment and advisory service will be available for employees who have been off sick for at least four weeks, to encourage an early return to work. This will be state funded and assessments carried out by occupational health professionals.

Equal pay audits: October 2014

Employment Tribunals will have the powers to order employers to carry out an equal pay audit, where they may have breached equal pay legislation. More on this, closer to the time.

Zero hour contracts: The next 12 months

Zero hour contracts, another media favourite, will likely come under the spotlight again in 2014 following the results of a Government consultation. Changes are likely to be made in respect of “exclusivity clauses” which restrict staff from working for another employer unless in direct competition, and pay equity, which should see zero hours staff paid at a comparable rate to those doing similar work. Recent CIPD research has dispelled many of the zero hours’ myths that have made the headlines in recent months and we believe that changes outside those mentioned above will be limited.  Whatever the future holds, BPE can provide guidance on the safest or most commercial ways of implementing zero hours’ arrangements.

Chris Aldridge Employment Solicitor chris.aldridge@bpe.co.uk Phone: 01242 248431

However, we lawyers have been waiting for three years now for the exciting (in our minds at least) case law to start to emerge so that we can really understand how the changes to the law will have a practical impact on our clients.

The recent case of R&S Fire and Security Services Ltd (‘RS’) v Fire Defence Plc (‘FD’) [2013] EWHC 4222 (Ch) raised the issue of whether, in the absence of the correct notices, a sum owed could ever be deemed to be “disputed”.

Why would we ask this?  We were considering the merits of simply serving a Statutory Demand for unpaid amounts in the absence of notices and threatening to wind up the debtor company.

In order to answer this, we need to remind ourselves that section 122(1)(f) of the Insolvency Act provides that a company may be wound up by a Court if it is unable to pay its debts and that the whole winding up process can be started by any creditor owed more than £750.  One part of that process is to advertise the petition.  If this is discovered by a company’s bank, the bank is likely to freeze the company’s account immediately.  In short at this point it is safe to say that it is ‘game over’ for the company concerned.

How then could the debtor defend such a petition?

Well the answer is easy, all they need to do is demonstrate to the Court that the debt is (a) satisfied (i.e., the petition was in error or you have paid since), (b) is disputed (such dispute having a reasonable prospect of success) or (c) that you have a counter-claim which exceeds or matches the value of the petition debt and you can ask the Court to strike out the petition.  It really is that simple!

Now here is the good news (for debtors):

In the case of RS v FD the applicant (RS) applied to the Court for the petition to be struck out on the basis that RS had a substantial counter-claim which exceeded the petition debt.  The interesting and important point is that the petition debt had been established after an application for payment, which had not been met with either of the notices required pursuant to the Construction Act, was not paid.  Without going through all the details (which these types of articles often unnecessarily do) the good news for RS was that it won the argument and the Petition was set aside.

Now for the bad news (or good news if you’re a creditor!):

This is the important bit:  The Court held that whilst the Petition should be struck out, on the basis of the facts presented, the Court did so (and I quote) “with hesitation”.  The Court decided that in the absence of the correct notices the debt (or as we know it, the Notified Sum) was indeed a debt which in many other cases may not be disputed by the payer, in the absence of any notices.

Now I have myself, on a number of occasions, issued Statutory Demands on behalf of clients to recover debts as precursor to presenting a Petition to wind up.  It’s a strong threat.  However, when advising clients I was always mindful that if the debt was disputed, then my client should expect to pay the legal costs if an application was successfully made to strike out the Petition by the debtor.

It now appears that dependent upon the facts, a Statutory Demand and any subsequent Petition may be issued simply on the basis that the company has failed to issue the correct notices pursuant to the Construction Act and that in the absence of such notices the payer has no defence to the non-payment.

Worryingly the debt in RS v FD was less than £10,000, but of course to issue a Statutory Demand the debt need only be greater than £750.  So the next time you are deliberating whether to issue a notice because the value of the application is small, just remember if you fail to issue the notice and then decide not to pay, you may not just be closing the door on any future defence, but may soon be closing the door to your livelihood.

By Steve Oakes

For more information contact    

Steve Oakes – steven.oakes@bpe.co.uk - 01242 248457

The main changes are listed below:

L1A – New Dwellings

• A new requirement, regulation 26A, has been introduced that requires new dwellings to achieve or better a fabric energy efficiency target in addition to the carbon dioxide target.

• The Part L 2013 specifications have been strengthened to deliver 6% carbon dioxide savings across new homes.

L2A – New building other than dwellings

• The Part L 2013 specifications have been strengthened to deliver 9% carbon dioxide savings across the new non-domestic building mix.

• A wider set of notional buildings has now been defined for top-lit, side-lit (heated only) and side-lit (heated and cooled) buildings

The new measures mean new homes and non-domestic buildings will have to include energy saving features such as better fabric insulation and more efficient heating and lighting.

Works started before 6 April 2014 remain subject to the earlier edition of the guidance. Works subject to a building notice, full plans application or initial notice before this date will also remain subject to the earlier edition of the guidance, provided it is started before 6 April 2015, giving a year’s grace.

Further information on the changes can be found at the following site: http://www.planningportal.gov.uk/buildingregulations/approveddocuments/partl/changes

By Katie Pickering

For more information contact katie.pickering@bpe.co.uk

• The investment fundamentals of solar development are sound With low technology risk and revenue streams underpinned by legislation, investors and developers benefit from low volatility of return.

• Low risk technology, low maintenance costs and low trading risk. PV panels have a warranted operating life in excess of 20 years, and once installed have no moving parts requiring limited maintenance.

• The feasibility of any renewable energy project is largely determined by grid connection and grid capacity – with network capacity in short supply this needs to be considered at the outset.

• Roof mounted installations can be fast tracked as generally planning permission is not required.  Ground mounted PV installations take longer, require planning permission and typically upgrades to the existing grid connection.  This can be counterbalanced by the economies resulting from increased scalability and panel “tilt” optimisation.

Solar projects

• Make sure that the procurement route is one that a funder understands and can secure against. If the contractual structure looks overly complicated, then it probably is (9 times out of 10).
  
  
• Ensure that the contractual matrix is fit for purpose. For instance, a solar project in a field (or desert, although there aren’t many of those in the Cotswolds) may be procured using a more engineering focussed contract than a roof-top installation;
  
  
• Ensure that you have the right team of professionals around you so that you get the right advice at the right time;
  
  
• In the retrofit arena, check that there is nothing in the documentation for the existing structure which may mean that the proposed solar installation is either (i) not practically viable or (ii) threatens the validity of existing warranties or building product guarantees in its current form and needs to be re-assessed.

Anaerobic digestion schemes

• Do you have certainty of supply i.e. a herd of cattle or similar?
  
  
• Consider what the scope of the installation is going to be. Does it (i) simply involve the installation of the digester itself with a maintenance package from a supplier for your own use or (ii) necessary civil engineering works and the digester installation as well as the maintenance package and possible power purchase agreement with your installer/supplier?
  
  
• Sense check what you can afford or how 3^rd party investment is going to work. Clearing banks are unlikely to fund such schemes, as there is arguably very little in terms of residual assets (apart from the second-hand repository) to take a charge over.
  
  
• Consider carefully the timeline from initial feasibility to health and safety approvals (CDM Regulations etc) and start on site for enabling works through to completion of the installation, commissioning and testing and ultimate handover. It will take longer than you think;
  
  
• Make sure that your contracts are rigorous in terms of what constitutes ‘performance’ of the digester and the criteria for testing and commissioning before you take responsibility for the running of the system.

Tim Williams (Partner) and Jon Close (Partner), BPE Renewables Team

For more information contact

Tim Williams – tim.williams@bpe.co.uk - 01242 248453/ jon.close@bpe.co.uk - 01242 248278

• Indirect losses: There is usually a maximum for which the warrantor can be liable. This means you cannot recover losses concerning, for instance, profits or temporary relocation costs.  Generally speaking, warrantors are only obligated to pay reasonable costs of repair, renewal and/or reinstatement.
  
  
• Rights of defence: Multiple defences are made available to warrantors, and money disputes between the warrantor and their own employer should not affect the rights of the beneficiary.
  
  
• Care and skill: A warrantor’s duty of care is a basic requirement but one size does not fit all. This clause needs to be amended in light of the project to afford the employer greater protection.
  
  
• Harmful/deleterious materials: Ensure the warranty terms are identical to those of the warrantor’s actual contract/appointment otherwise your rights may be reduced.
  
  
• Copyright: In most standard warranties, a copyright licence to use drawings etc is dependent on payment of outstanding fees (which you, as beneficiary, were probably not obliged to pay in the first place)
  
  
• Professional indemnity insurance: The provisions do not necessarily protect the employer and they fail to provide an effective sanction for any breach by warrantor of his obligations to maintain this insurance.
  
  
• Assignment: Standard warranties can only be assigned twice which can have the effect of reducing the value of the building itself if it is sold in the future.  Employers should insert a clause stating further assignments are possible (but you may accept that such assignments are subject to the warrantor’s reasonable approval).   
  
  
• Limitation: Avoid future complications - include an obligatory 12 year liability period and ensure the warrantor executes the warranty as a deed (not “under hand”)!

Obviously any warranty is better than no warranty at all. Ensure that you and the warrantor are in agreement with your terms and most importantly, do not feel pressured to accept a warranty that you are not happy with.

By Anna Wood, assisted by Libby Williams

Employment is one of the fastest changing areas of law in the UK. Failure to keep up to speed on any changes may not just land you with an Employment Tribunal claim; it could also lead to criminal charges. Our colleagues in BPE’s Employment Team have therefore set out a brief rundown on expected key changes in 2014.

31 January 2014: Changes to TUPE legislation.

February 2014: Maximum fine for failure to pay National Minimum Wage increased to £20,000 per effected worker.    

06 April 2014: Financial penalties of up to £5,000 for employers who breach employment rights with “aggravating features”.

06 April 2014: Right to request flexible working extended to all employees with at least 26 weeks service, not just parents or carers.

06 April 2014: Statutory Maternity and Statutory Adoption pay increases to £138.18 per week. Statutory Sick pay increases to £87.55 per week.

Spring 2014: Government Health and Work Assessment Advisory Service to be introduced for state funded assessments where employee is absent for four weeks.

01 October 2014: National Minimum Wage increases.

By end of 2014: Changes to Health and Safety regulations.

Should you require more detailed information on any of the above changes please email:

Steve Conlay - steve.conlay@bpe.co.uk or call 01242 248444

It is worth noting that just because the Courts have tried to “ban” the use of Latin (and likewise good lawyers know that they shouldn’t use Latin in an attempt to sound cleverer than they really are) this does not mean that the principles enshrined in certain Latin phrases were the babies thrown out with the bathwater.

“Contra proferentem” is not a phrase you will see in many contracts (and nor is the direct translation “against the one bringing forth”).  However, it is a rule of contractual interpretation that means that an ambiguous clause in a contract will be interpreted against the interests of the party who insisted upon including it in the contract in the first place.  How ironic, one might think, that a Latin phrase would prevent someone from benefitting by deliberately confusing their reader!

The key thing to remember with “contra proferentem” is that if you try to sneak an unreasonably onerous term into your contract/standard T&Cs (or if the other side spots it and you still insist upon it staying there), there remains a reasonable chance that it will be unenforceable in Court, should the clause ever be disputed.

The obvious conclusion is “Primum sane esset agendum”.  (Google Translate will assist the reader with the author’s pigeon Latin, where necessary).

By Anna Wood

For more information contact

Anna Wood – anna.wood@bpe.co.uk - 01242 248215

To read the full newsletter, download it here.

• I’ve worked in the construction sector since: 1969
• The best thing about my job is: It gives me the opportunity to make a difference and potentially save lives!
• The worst thing about my job is: Working with international companies I have to make Skype calls at some interesting times!!
• The first album I ever bought was: Easy Rider on LP
• My favourite holiday was to: Thailand, I loved it so much I ended up living there for a while
• My favourite bar/restaurant in Gloucestershire is: Monty’s- I recently went there to celebrate my birthday
• Make mine a: Cappuccino
• In 2014…. We wish to see international growth in fire safety
• My perfect Sunday would be: having a day off!!!!      

You might think that the word “reasonably” would apply to the worker’s choice of representative as well as the request itself, but two recent Employment Appeal Tribunal cases have made it clear that it does not!

Provided that a worker requests either a trade union official or a fellow worker, the EAT has stated that an employer cannot reject that request, even if the employer has reason to believe that the worker’s choice is unreasonable.

This flies in the face of the current ACAS Code of Practice on disciplinary and grievance procedures, which states that:

“To exercise the right to be accompanied a worker must first make a reasonable request. What is reasonable will depend on the circumstances of each individual case. However, it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site”.

The EAT has effectively disregarded the above guidance, which is to be re-visited and amended in due course (ACAS are in the process of consulting about its proposed changes to the above Code of Practice).

One saving grace, however, is that the EAT indicated that the amount of compensation (capped at two weeks’ pay) which workers should receive if an employer refuses their choice of representative should be nominal if the worker has not suffered any detriment or loss as a result, and compensation is likely to be nil if the worker deliberately chooses an unsuitable companion.

Finally, few workers are likely to bring stand-alone Tribunal claims on this point, as they would have to pay a £250 application fee for the privilege!

Sarah Lee Employment Associate Solicitor sarah.lee@bpe.co.uk Phone: 01242 248261

It is often assumed employees are motivated by the same thing – money.  If this is the case, then the bosses of Poundland would have had a shock when they recently awarded their staff a 10% discount on in store items as a Christmas bonus.  Yes, that’s right, a 10p discount. For a company with annual gross revenues of nearly £1billion, we understand this gesture did not succeed in its likely aim of motivating staff during the festive period.

Whilst the above might not be a fair example because in some cases more generous pay incentives, or pay increases could have the desired effect, if your business does not have the luxury of awarding financial incentives, how will you get the best out of your workforce in the New Year?  This is likely to depend on a business understanding what really motivates its workforce.  So, if your business does not have its own Mr Motivator why not ask employees what drives them (or drives them mad!) in a staff questionnaire? The results could be surprising and in some circumstances, the implementation of suggestions could cost nothing to achieve.

Studies show that common motivators include job status, praise and acknowledgment, job security, recognition, flexibility, career progression, responsibility and loyalty.  This is why some consider options such as introducing schemes to reward performance, long service or increased responsibility or even restructuring a business so there is a clearly defined career path.  Others may explore the implementation of flexible working patterns which make it easier for employees to fit their work in with their family commitments. The list goes on. If you are thinking about doing any of these things, then get in touch.  You will likely need clearly defined polices on how new proposals will work and to consult staff on any fundamental changes to current working practices. You may also need updated contracts of employment and/or staff handbooks.  Until then, get down and give me twenty!

Chris Aldridge Employment Solicitor chris.aldridge@bpe.co.uk Phone: 01242 248431

The employee from the case in question suffered from anxiety and depression and remained off sick for a year until his dismissal. The employer believed that the employee would not return to work in the foreseeable future and therefore took the decision to end their relationship. The employee then felt well enough to bring a claim for unfair dismissal, which was initially successful. However, this finding was later overturned on appeal and the claim has been referred back to the Employment Tribunal to reconsider.

As part of its judgment, the appeal Court offered useful guidance to employers on dismissing employees for long term ill health. This included asking questions such as:

• Whether the employer could be expected to wait any longer for the employee to return and if so, how much longer? This would include considering sick pay entitlement, the ability to cover work/use temporary staff and the size of the organisation and the impact of an ongoing absence.
• Whether reasonable steps had been taken to discover the employee’s medical condition and likely prognosis. Relevant questions must be asked and answered, but the employer is not required to pursue a detailed medical examination.
• Whether the employee had been consulted with and their views taken into consideration (in the context of any medical opinion). Naturally, if an employee suggests that they are anxious to return to work and hope to do so in the near future, this will stand them in better stead than if they report that they are no better and do not know whether or when they will be able to come back.

Overall, this case provides an important reminder to employers that they need to carefully balance their business’ needs against the nature of the employee’s ill health,  the prospects of them returning to work and, in particular, whether it would be reasonable to wait longer. Therefore, during any welfare meetings it is vital to gain the employee’s view on their fitness and obtain medical reports (wherever possible).

Heyma Holmes Employment Solicitor heyma.holmes@bpe.co.uk Phone: 01242 248253

Medical opinions are usually sought when there is a risk of an employee being disabled for the purposes of discrimination legislation. For this reason, as part of the assessment process, experts are normally asked for their views on whether an employee is disabled. If an expert comes back with an opinion that the employee is disabled, then at least the employer knows that they have to tread carefully when dealing with them. This is particularly because a duty to make “reasonable adjustments” to working practices and protection against discrimination arising from a disability are triggered when an employer knows or is reasonably expected to know, that an employee is suffering from a disability.

In the Court of Appeal case, an employer was told by Occupational Health specialists that a particular employee (who was suffering from depression) did not have a disability. This advice then informed how the employer treated the employee, which ultimately involved his dismissal. When the employer later had to defend a discrimination claim, it argued that it could not have discriminated against the employee because it did not know he was disabled and relied upon the medical reports obtained in support. Initially, the employer succeeded with this approach, but when the Court of Appeal became involved the Occupational Health reports came under fire. The Court felt that they lacked a reasoned approach and, more importantly, did not base their conclusions on the statutory definition of a “disability”. This led to a finding that whilst the employer had acted reasonably by seeking Occupational Health input, it was ultimately for them to make a factual judgment as to whether the person was disabled and not simply “rubber stamp” a medical report. This meant that the employer should have considered Occupational Health’s opinion in light of what it had observed first hand of the employee.

So what should employers take from this decision? Thankfully, we don’t see it as a case of “damned if you do and damned if you don’t”. Going forward, employers should still obtain an expert’s opinion where appropriate. However, the key is to make sure that the right questions are asked of the expert (not just simply “is X disabled”) and the reports they produce are challenged when all of the relevant points are not addressed, or it seems that they have reached an unsupported conclusion (here, the expert should be asked to revisit their findings and circulate an updated report if necessary).

Unfortunately, notwithstanding the above, where an expert’s report suggests that an employee is disabled, an employer cannot simply ignore this if they have a different view. Employers will still have to have a really good reason for ignoring or challenging an expert’s assessment!

Matthew Burton Employment Partner matthew.burton@bpe.co.uk Phone: 01242 248281

The recent case of Boss Projects LLP v Bragg involved such a scenario.  Here, an individual who was unequivocally classed in the written contract as being in business on his own account, later alleged for the purposes of claiming holidays under the Working Time Regulations that he was in fact a “worker”.

Mr Bragg was a Scaffolding Supervisor who had signed a contract with Boss Projects LLP.  Boss provided services to an end client by way of a chain of contracts, but Boss paid Mr Bragg.  The contract which he signed stated, amongst other things, that “this legal relationship is one of contractor and independent sub-contractor and specifically is not a relationship of master and servant or employer and employee”.  The contract also gave Mr Bragg the right to substitute and/or delegate his workload or hire assistance, for which he was to be financially responsible.  Further, the contract set out that no holiday or sick pay would be paid to him and that he would be responsible for his own tax and National Insurance.

In line with earlier decisions, a Tribunal held that Mr Bragg was a worker and sought to award the holiday pay to which it felt he was entitled.  The Tribunal came to this finding on the basis that, in practice, both parties had expected Mr Bragg to personally carry out the work and that the right of substitution was never intended to be exercised.

Boss appealed against this decision, but the Appeal Tribunal upheld the Tribunal’s view, despite the express contractual provisions.  They decided that the Tribunal was right to look at the reality of the situation as well as what was stated in the contract.

This case goes to show that however “watertight” contractual documentation may seem, Tribunals will continue to look at the scenario in practice. For this reason, it is important to ensure that how a relationship works on a day-to-day basis reflects the terms of any agreement between the parties.

Pav Clair Employment Solicitor pav.clair@bpe.co.uk Phone: 01242 248221

Justine Sacco, a PR Executive (now former PR executive) of media company IAC, made headlines around the world when she sent out a tweet reading “Going to Africa. Hope I don't get AIDS. Just kidding. I’m white!” prior to boarding a 12 hour flight to her destination. Within hours the tweet received over 3,000 retweets attracting negative comments, aimed not just at her, but at her employer.

Ms Sacco’s public apology upon landing was not enough to save her job and within 24 hours, IAC released a statement confirming that they had parted ways with her.

Whilst the exact details of “parting ways” was never fully disclosed in these circumstances, any such behaviour by an employee in the UK might be construed as gross misconduct, entitling the employer to dismiss the employee following a full investigation into the facts. When deciding on whether a tweet or Facebook post is worthy of gross misconduct, an employer may take into account the negative publicity that it receives as a result of the employees tweet or post.

This case is a key lesson for employees as to the dangers of irresponsible or thoughtless social media posts, the result of which may not only cost them their job, but also tarnish any future career.

Steve Conlay Employment Paralegal steve.conlay@bpe.co.uk Phone: 01242 248444

The move follows statistics released for 2013/2014 which showed that 26,000 workers received reimbursement for underpaid wages during the period, with 708 employers fined for their actions.

In addition to the increased fine, the Government aims to further strengthen the Regulations by ensuring that the new maximum fine could be levied for every worker denied the minimum wage. In addition to the increased fine, a further financial penalty equating to 100% of the underpaid wages can be recovered by HMRC. The move comes on the back of the Governments initiative in October 2013 to publicly name and shame employers who fail to pay the statutory minimum wage.

National Minimum Wage is re-assessed on an annual basis with changes occurring on 1st October every year. The current rates for minimum wage are as follows:

• Aged 21+ £6.31 per hour

• Aged 18-20 £5.03 per hour

• Aged 16-17: £3.72 per hour

• Apprentice: £2.68 per hour

In terms of potential future rates, the Chancellor has allegedly made favourable comments recently regarding a recommendation that would raise the minimum wage from £6.31 to £7 an hour from October. Given that the timing of such an increase would be seven months before the general election, you can see why the Government might be incentivised to make a dramatic increase. However, this proposal is still only a proposal at this stage and no firm decisions have been communicated to date as to the October 2014 rates.

Lisa Gettins Employment Partner lisa.gettins@bpe.co.uk Phone: 01242 248237

Happy New Year! The BPE Construction & Engineering Team has decided to start 2014 by aiming to create a newsletter that breaks all the rules and contains information that people will actually want to read! As with the style of our advice to clients, we will get to the point quickly and provide practical information, rather than boring you with case law. In case this approach leaves you wondering if we really are solicitors after all, where there has been a genuinely newsworthy case since the last edition, the new look newsletter will contain one in depth article, alongside shorter snippets of information that you can read whilst sipping your detox fruit smoothie (or decent cup of builder's!).

What have we been up to?

Towards the end of last year we certainly saw an upturn in project work and we start 2014 with a positive feeling that the construction industry is finally starting to see an increase in activity. 

On the project side:

• We have been busy advising on procurement for a prestigious hotel/restaurant development in central Cheltenham.

• We have been providing risk reviews for contractors, specialist sub-contractors and numerous Catapults (the government/Technology Strategy Board's vehicles for focussing R&D funding on particular projects such as cell therapy research and high value manufacturing).

• Years of work advising in respect of the development of a new doctors' surgery in Tewkesbury are finally coming to a head.

Dispute work has also picked up and we have been advising on issues such as:

• What happens when a Letter of Intent names one party as the Employer but the (intended) Main Contract names a different party? Who is liable to pay the Contractor?

• What is a reasonably proportionate remedial response to the possible presence of asbestos in the ground following demolition on site?

• What tactics should you adopt in defending a case brought by a litigant in person who wishes to amend their Particulars of Claim for the third time?

Unsurprisingly, as the economic recovery is only just starting, most of our clients are very alive to the idea of settling disputes in order to keep costs proportionate. Jon has been using his mediator training to help give clients really useful advice on how best to approach mediation to achieve the best possible result.

Unlike the weather, our contentious caseload in January 2014 has got off to a very “settled” start, with three major cases settled (at least in principle) in the first 6 working days of the year!

We have also had a new addition to the team with Steve Oakes joining us as a consultant. You can read more about Steve in the "My Perfect Sunday" article, which is to be a regular feature in our newsletter and is a nod to the team’s favourite film, Hot Fuzz.

To read the full newsletter, download it here. 

The hope is that after attending an information session, many couples will decide that mediation is the best way for them to address the important questions that arise on family breakdown and avoid expensive and lengthy Court battles. Previously these sessions have been optional, unless an individual wanted to apply for legal aid. With the significant reduction in the availability of legal aid in cases of family breakdown, the focus has moved to increase the public’s awareness of mediation and its significant benefits over the traditional Court process.

Helen Cankett a family law solicitor and trained family mediator at BPE Solicitors in Gloucestershire, welcomes the introduction of these sessions, which will be part of the Children and Families Bill, currently going through Parliament.

“Family mediation can be of huge assistance to separating couples in helping them reach long-lasting agreements over the arrangements for their children and their financial affairs. The couple keep far more control over the final outcome, in a safe, confidential and supportive environment.”Mediation itself is a voluntary process which involves the couple meeting with a specially trained mediator who is completely impartial. As such, the mediator cannot give personal legal advice but can provide the couple with a wealth of legal information to help them understand the options available to them and the Court’s approach to similar cases. Whilst any agreement reached in mediation is not legally binding, the couple can then ask their solicitors to prepare documents to record the terms of settlement which can be approved by the Court.

Helen comments “Mediation is an incredibly successful process and most couples who start the process will, with the mediator’s help, be able to reach an agreement, or at the very least, significantly narrow the issues in dispute between them. This avoids the significant expense of Court proceedings, where ultimately a decision will be made by a Judge rather than the couple. Mediation also sends a positive message to the couple’s children and demonstrates that there is a willingness to continue to work constructively as parents in the future, despite the separation or divorce.”

Mediators carefully screen every client to ensure the suitability of mediation for their case and those who are victims of domestic violence will remain exempt from the compulsory sessions.

For more information on Family Mediation, please contact Helen Cankett on 01242 248256 or helen.cankett@bpe.co.uk.