Season 2.7: How to record a disciplinary hearing? |Employment Lawyer in Your Pocket

blackadders logoSeason 2, Episode 7: Simon & Richard answer a tweet from Big Man Talking ‘should you record a formal meeting with a manager on your mobile phone?’. They cover legislation, real cases and Richard gives us his top 3 tips.  As well as this Richard does an impression of J. Boyle…(if you can work out who that is?) and tries to get his twitter followers up. Also why does Simon have an Australian Siri?

We would be delighted if you would be able to provide us with some feedback by leaving a comment at the bottom of our podcast page. Thanks for listening!

You can listen to the latest episodes here:
Season 2.6: How to manage your apprentices?
Season 2.5: How to do social media?
Season 2.4: How to deal with copyright & trademarks?
Season 2.3: How to deal with stubble and tattoos?
Season 2.2: How to give a good reference?
Season 2.1: How to be a good witness?

You can also download this podcast free on iTunes.

The Blackadders employment team
Scottish Legal Awards Employment Team of the Year 2016 

Get in touch with the team on twitter:
@EmpLawyerSimon
@EmpLawyerJack
@EmpLawyerRich 
@BlackaddersLLP

#ELIYP

Spending too long in the Casino? Clarification on weekly working hours & rest periods

The Directive
The European Working Time Directive (“the Directive”) provides for certain rules on working time and rest breaks.  One of those rules is the entitlement to 24 hours rest away from work in any 7 day period.  The European Court of Justice (“ECJ”) has recently provided some clarification on how this rule works in the case of Marques da Rosa v Varzim Sol – Turismo, Jogo e Animacao SA.

The case
Da Rosa worked in a Portuguese Casino.  The working rules provided for two days off per week.  However on occasion the rota required workers to work for 7 days on the spin.  When his employment ended, he argued that this was unlawful and in breach of the Directive.  The issue to be determined was whether the worker had an automatic right to a day off work after working 6 consecutive days, or whether the employer was free to choose when the day off would be (i.e. at any time during the 7 day period).

The decision
The ECJ found in favour of the employer.  To comply with the Directive, all that needs to be done is to provide one day off work per 7 day period.  This means that a worker could have a day off at the start of one seven day period, then work 12 consecutive days (taking him or her into a second 7 day period), with a further day off at the end of the second 7 day period.

And in the UK?
In the UK, the Working Time Regulations 1998 provide for certain minimum rest periods for workers.  These Regulations implement the Directive.  The UK rights include:-

  • Rest breaks at work – 20 minutes rest break for any working time of 6 hours or more (note that the break cannot be at the start or end of a shift);
  • Daily rest – 11 consecutive hours of rest in any 24 hour period during which work is performed; and
  • Weekly rest –24 consecutive hours of rest per week, though this can be averaged over 2 weeks.
  • Also watch out for additional rights for night workers and young workers.

Summary
Weekly rest in the UK can either be achieved by allowing 24 hours of rest per week, or 48 hours of rest per fortnight, or two separate periods of 24 hours over a 14 day period.

For those lucky enough to enjoy weekends off work, this case will be of no relevance.

However, for those working business which operate around the clock, it is worth noting the decision.  This provides a degree of flexibility for employers when arranging rotas etc.

If you have any questions about rest breaks and working time, get in touch with our Employment Team.

Jack Boyle, Employment
Associate Solicitor 
@EmpLawyerJack
http://www.blackadders.co.uk   

Landlords, winter is coming!

With the nights drawing in it won’t just be the weather that bites on the 1st of December, the Scottish Government have confirmed that the long anticipated replacement tenancy scheme for Scotland, known as a Private Residential Tenancy (PRT) will be in force from December. In a nutshell the new scheme is a decided shift towards tenant’s interests from a legal framework which was already fairly tenant friendly.

In effect little will change for landlords and tenant with a pre-existing short assured tenancy as this framework will remain in place even if the tenancy has overrun its original term and is continuing by tacit relocation. The changes will only affect new tenancies from the 1st December 2017.

A model tenancy agreement was released by the Scottish Government at the end of October and is available online. It is hoped that this will harmonise the leasing market and remove some of the drafting anomalies encountered by both landlords and tenants. The model agreement can however be modified to a certain extent but certain clauses are noted as being mandatory and cannot be modified.

One of the biggest changes is that under a PRT a start date will be agreed between the parties and the tenancy will continue indefinitely until it is terminated by either party in accordance with statutory provisions.

An area which is proving somewhat controversial is that if tenants wish to terminate the tenancy they must give the landlords 28 days’ notice in writing, however, if a landlord wishes to evict a tenant the notice period varies depending on a number of factors not least how long the tenancy has been in place. For example, the notice period for removing a tenant (not due to a fault ground) is 28 days if the tenant has been in residence for 6 months or less but increases to 84 days if the tenancy has existed for more than 6 months.

The new grounds for eviction are mostly mandatory grounds but with elements which must be established before they apply, such as the tenant owing some rent for 3 consecutive months. In the event that the tenant refuses to leave, the landlord must obtain a court order for their removal. If a mandatory ground applies the court must grant the necessary order once the criteria is established, if a discretionary ground is relied on, the court must consider the reasonableness of the request. This distinction is similar to the previous scheme and the biggest change is in fact where these court proceedings take place. Rather than proceedings for eviction being raised in the Sheriff Court, eviction actions will now be raised in the Housing & Property Chamber and it is hoped that this will allow cases to progress more swiftly without other types of cases taking up court time.

With the changes to the law it is vital to consult with your solicitor to establish whether the situation you are facing invokes either a mandatory or a discretionary ground and to identify those facts which must be established. If you have any queries regarding the new scheme or require assistance in relation to a tenancy dispute please contact our dispute resolution team.

Alastair Johnston, Dispute Resolution
Senior Solicitor
@BlackaddersLit
www.blackadders.co.uk

Taxi for Uber

Workers for Uber have been placed in the driving seat following today’s Employment Appeal Tribunal decision.  This upheld a previous tribunal ruling that Uber drivers were “workers” within the meaning of the Employment Rights Act 1996.

The ‘Gig Economy’
The Uber business model is perhaps the best known in what is referred to as the “gig economy” where people work via apps, for companies like Uber and Deliveroo, to provide a service to clients.  These companies had argued that the people providing the service were independent, essentially self-employed, and not an employee.  This means they would not benefit from the rights and protections that are afforded to “workers” or “employees.”

Tribunal Decision
The tribunal decision had stated that drivers were “workers” when they were in the territory in which they were authorised to drive, had the Uber app turned on and were ready and willing to accept fares.  The tribunal also said that Uber exerted a level of control over workers.  This included drivers being locked out of the app if they did not accept or complete a certain number of fares, which the tribunal said was akin to taking disciplinary action against the drivers.  This, they said, all indicated a worker relationship with the company.

Workers’ Rights
This ruling means the drivers will benefit from workers rights such as, receiving the national minimum wage, paid annual leave, a maximum 48 hour week and rest breaks.  The classification as a ‘worker’ rather than ‘employee’ means they will not have the full entitlement of rights that employees benefit from.  These include, the ability to claim unfair dismissal, the right to a statutory redundancy payment and the protection of TUPE legislation if Uber were to sell its business.

A Dead End for Uber?
While this ruling is a shot across the front bumper of Uber, it may not be the end of the road for them.  It is likely they will appeal this decision to the Supreme Court, who are set to hear another ‘gig economy’ case involving Pimlico Plumbers.

If you are unsure about the status of workers, or the rights they are entitled to, then contact the Blackadders’ employment team.

Richard Wilson
Trainee Solicitor, Employment
@EmpLawyerRich   
www.blackadders.co.uk 

Impact of divorce on succession

The Succession (Scotland) Act 2016:
The law of succession does not change often in Scotland. Most of the substantive rules go back to 1964, and other aspects go back further. A program of reform is however now on the horizon, with the effects of the first stage beginning to show. The Succession (Scotland) Act 2016 is concerned with fairly brief technical points, while later legislation will introduce a more broad-ranging overhaul of the laws of intestacy and protection against disinheritance.

The 2016 Act has interesting things to say about the laws of common calamity and the procedure for judicial rectification of a defective Will, however this article will focus on two areas covered by the Act that practitioners will encounter most often: the impact of a client’s divorce, and the commissary procedure in handling estates.

Effect of divorce etc.
For deaths on or after 1 November 2016, the deceased person’s ex-spouse or civil partner will be treated as having predeceased for all purposes of the Will, save for any nomination of them as a guardian for another person. Prior to the Act, divorce had no such effect.

This seems useful for the simple reason that it brings the law in line with what the majority of clients thought was already the case, echoing the longstanding position in England. This has closed a dangerous trap for clients who “Googled” the problem, only to be given false assurance by the English position, and thus omitted to take action to amend their Will – sometimes with disastrous effect.

However the Act is not a cure-all. It will not affect the appointment of former “in-laws” or step-relations as named executors or beneficiaries, and it does not account for the host of circumstantial changes that a client will experience following divorce. The need for the Will to be reviewed is still critical – it is just that the worst case scenario has been slightly improved.

The Act also contains a similar rule in relation to survivorship destinations within assets of any kind. Again, the surviving ex-spouse or civil partner will be treated as having predeceased, and thus they will not stand to receive the deceased’s interest in that asset.

However unlikely it may be, there is also the facility for parties to opt-out of these provisions by including wording to provide that subsequent divorce is to have no effect on e.g. the appointment of an executor or the effect of a survivorship destination.

Commissary Practice
The C1 Declaration must demonstrate that the appropriate person is applying for Confirmation. How does one document the effect that the Act has had on the executors under the Will? And perhaps more confusingly, how does one show that the Act has not affected the executors?
There is an ongoing dialogue between leading practitioners and the Scottish Court Service on the matter. For now, the position is as follows:

  • Where executors are related to the deceased, the degree of that relationship should be narrated;
  • Where an executor has “failed” by virtue of divorce etc., this must be narrated; and
  • Where the executors seeking Confirmation are relying on a prior executor having “failed” in terms of the Act, they must narrate this fact and produce the relevant decree of divorce etc.

This leaves open the question of how to document an executor who was not related to the deceased. In order to cover all logical possibilities created by the Act, it would be necessary to state that the executor was never married to or in a civil partnership with the deceased, and thus their appointment was not vitiated by subsequent divorce. This initially seems an odd statement particularly if the executor was the deceased’s solicitor, however stranger things have happened! Unless the executor is a limited company, the possibility of marriage and divorce requires to be covered.

The Act also marks the first change in relation to procedures in intestate estates for the appointment of executors dative, and it paves the way for more changes in future. Firstly, the requirement for a Bond of Caution has been removed from “small estates” (less than £36,000) providing the Sheriff Clerk’s office is assisting with the preparation of the Inventory form. All other intestate estates still require Bonds of Caution. The Act allows the Scottish Ministers to make regulations changing the rules even more: whether by changing the threshold for estates requiring Bonds of Caution, abolishing Bonds of Caution completely, or by devising new rules setting requirements before an individual can be appointed as executor dative.

There is potential for Scottish succession laws to change more in the next few years than in any time for a generation, so practitioners would do well to keep pace in these early stages.

For more information and advice about Wills please contact our Private Client team at Blackadders.

Laura McDowall, Private Client
Partner
@LawyerLauraMcD
www.blackadders.co.uk

 

Season 2.6: How to manage your apprentices? | Employment Lawyer in Your Pocket

blackadders logoSeason 2, Episode 6: Simon & Jack answer a tweet from Henderson Loggie Chartered Accountants ‘Do apprentices have different rights to employees? If so what’s the difference?’ .  Jack gives us his top 3 tips whilst Simon reveals his favourite …and worst apprentice!!

 

 

We would be delighted if you would be able to provide us with some feedback by leaving a comment at the bottom of our podcast page. Thanks for listening!

You can listen to the latest episodes here:
Season 2.5: How to do social media?
Season 2.4: How to deal with copyright & trademarks?
Season 2.3: How to deal with stubble and tattoos?
Season 2.2: How to give a good reference?
Season 2.1: How to be a good witness?

You can also download this podcast free on iTunes.

The Blackadders employment team
Scottish Legal Awards Employment Team of the Year 2016 

Get in touch with the team on twitter:
@EmpLawyerSimon
@EmpLawyerJack
@EmpLawyerRich

#ELIYP

Transfer of Agricultural Tenancies, now on death, during lifetime or with a view to retirement?

The introduction of Part 10 of the Land Reform (Scotland) Act 2016 has brought, as many are aware, an improvement in the options available to a 1991 Act tenant when considering a transfer of an interest in the tenancy. Whereas under the existing Agricultural Holdings legislation it was already an option to the tenant to transfer his interest in a 1991 Act Tenancy either on death or during his lifetime, the category of people who could benefit from such a transfer without the risk of an incontestable notice to quit from the landlord, i.e. the “near relative successor” group, was quite narrowly defined. The near relative successors, who benefit from the availability of restrictive grounds of objection available to the landlord, originally only included the surviving spouse, surviving civil partner or a natural or adopted child of the tenant. The near relative successor group was expanded in 2012 with the addition of a grandchild. Although this was a welcome step forward, it did not provide a solution to tenants who wished to retain the interest in the 1991 Act Tenancy within the wider family. Particularly where in a farming business involving a brother or sister or other close relatives where there were no children of the tenant.

As most tenants and landlords are aware, the near relative group has now been expanded to a much larger family group which includes for e.g. a parent, a son or daughter-in-law, a sibling, a sister or brother-in-law or their further offspring. This widening of the “protected” group of successors does give the tenant who is planning for succession after death or upon retirement during lifetime a much wider choice as to who may benefit after his death or retirement from his interest in the tenancy. This of course has to be looked at hand in hand with a number of other provisions in the 2016 Act such as the Amnesty provisions for Tenant’s improvements and not in the least, the provisions relating to the Relinquishing and Assignation of Holdings. The latter in general terms, allows a 1991 Act tenant to serve notice on his landlord that he will quit the holding provided the landlord pays him the compensation provided for in the Act. If the compensation is not paid or the landlord does not wish to accept the tenant’s proposal, the tenant is then free to assign his interest in the tenancy to a new entrant to farming or to an individual who is progressing in farming.

So how may this work in practice? Imagine a scenario where a 1991 Act tenant does have children, however they are not interested in continuing on the farm, nor in taking on the tenancy interest. The current tenant does however wish to secure the value of his tenancy for his own family and children. Before the 2016 Act the tenant did not have many options available to him. Unless an agreement could be reached with the Landlord, he could, as many did, continue on as a tenant on the farm until his death. If there was nobody to transfer the interest to at that point, the tenancy would most likely terminate with any available way going claims becoming available to the tenant’s estate. The real value of the interest in the tenancy, however, would be lost.

Under the 2016 Act the tenant now has a number of options. Firstly, the tenant may either upon his death or during his lifetime assign his interest in the tenancy to a family member within the wider near relative group, for example, a nephew. In Which case, the value of the tenant’s interest would be secured within the wider family. However, this does not provide for a value to be transferred to the tenant’s own children. We need to consider whether in such a scenario, the payment of a premium by the proposed new tenant is an option. I don’t see why it could not be. As such we would effectively see a “sale” of the 1991 Act tenancy interest, thus providing for a value to be made available to the original 1991 Act tenant and his own family, children etc. Secondly, the tenant may decide to retire and make use of the relinquishment and assignation provisions. Again this would secure for the tenant either a compensation payment by the landlord or payment of a premium by the new entrant or individual progressing in farming who is to receive the benefit of an assignation of the lease.

It does not take much imagination to envisage the creation of a market in 1991 Act tenancies available for assignation. Whether this would result in increased availability of tenancies to new entrants remains to be seen.

We are seeing increased activity from Landlords with a rise in the number of discussions taking place between Landlords and Tenants on a possible relinquishment of the tenancy. This of course before the relevant provisions are in force in law and no doubt in anticipation thereof.

It is important, now perhaps more than ever, for tenant farmers to carefully consider their succession planning, this hand in hand with the opportunities offered for increased value as a result of the Amnesty provisions in relation to tenant’s improvements. When considering options careful consideration needs to be given to the effect any actions proposed may have on the tenant’s Inheritance Tax position and other applicable taxes and more particularly the effect of retirement or transfer on the available Business Property and Agricultural Property Reliefs available.

For more information on land transactions and tenancies please contact the Rural Land and Business team at Blackadders.

Petra Grunenberg, Partner – Rural Land and Business
Accredited by The Law Society of Scotland as a specialist in Agricultural Law
www.blackadders.co.uk

Season 2.5: How to do Social Media? | Employment Lawyer in Your Pocket

blackadders logoSeason 2, Episode 5: Simon & Richard respond to a tweet by Elevator asking ‘do you encourage your employees to use social media?’. They discuss a cautionary case and Richards top tips are definitely worth noting down. Simon’s hashtags (#’s) are a bit dubious… but they will definitely give you a few laughs!!

 

We would be delighted if you would be able to provide us with some feedback by leaving a comment at the bottom of our podcast page. Thanks for listening!

You can listen to the latest episodes here:
Season 2.4: How to deal with copyright & trademarks?
Season 2.3: How to deal with stubble and tattoos?
Season 2.2: How to give a good reference?
Season 2.1: How to be a good witness?

You can also download this podcast free on iTunes.

The Blackadders employment team
Scottish Legal Awards Employment Team of the Year 2016 

Get in touch with the team on twitter:
@EmpLawyerSimon
@EmpLawyerJack
@EmpLawyerRich

#ELIYP