I’m Dreaming of a White Christmas

I would imagine that the majority of work place Christmas parties will involve a drop or 2 of alcohol, and the shenanigans that comes with this.  Of course there will be some individuals who go too far and resort to dabbling in drugs in order to maximise their enjoyment of the party season.

It is fine for employees to dream of a white Christmas, provided that the white stuff which is dreamed of is snow.  However, if it is not, then this could spell trouble.  Cocaine is one such drug that is controlled under the Misuse of Drugs Act 1971.

So, what does this have to do with employment law, I hear you ask.  It is an offence for an employer to knowingly permit, or even to ignore, the use, production or supply of any controlled drugs taking place on their premises.  If you discover an employee taking drugs at an office Christmas party, it is important that you take the appropriate action.

However, a word of caution!   Where an employee is caught bang to rights taking an illegal drug it does not mean that the usual rules for disciplinary procedures can be abandoned in place of an on-the-spot dismissal.  That would likely result in a successful claim of unfair dismissal.

Employers should treat offences of this nature in the same manner as any other instances of misconduct.   The 3 stage process of suspension, investigation and disciplinary hearing should still be followed to avoid being on the wrong end of a possible tribunal claim.

What about an employee who is convicted of drug abuse outside of the workplace?  They can surely be sacked right?  Potentially yes.  However, employers must still follow the necessary procedures and take into account relevant factors such as the nature of the job and whether the conviction impacts on the employer’s reputation.

A tip from the top: Keep your snow for the snowmen this year.

For more information on misconduct please contact the Employment Law team at Blackadders.

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

Season 2.9: How to keep control over your employees? | Employment Lawyer in Your Pocket

blackadders logoSeason 2, episode 9: Simon, Jack and Richard all join up for the last episode of season 2. The guys answer a tweet from Vital Hike ‘how to keep control over your employee?’. They cover Christmas parties, work trips and give example of real cases. As well as this Jacks give us his top 3 take away tips. Remember to listen after the music to see if you can work out what Richards theme tune is…we can’t!

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 2.8: How to appoint a data protection officer?
Season 2.7: How to record a disciplinary hearing?
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
@CorpLawyerRuth
@BlackaddersLLP

#ELIYP

 

 

It’s the thought that counts

They say “It’s the thought that counts!”. Now is no better a time to think about making a will and looking after your loved ones.

At Blackadders we will discuss your options and help you prepare a will in a friendly, comfortable environment. We will take into account your individual circumstances, succession planning for your business, and inheritance tax issues.

Our staff tutor on the Diploma in Professional Legal Practice at the universities of Edinburgh and Dundee as well as setting the course work and exams for STEP (Society of Trusts and Estate Practitioners). Why wouldn’t you want to take advice from the masters in their field? Our staff are regulated by the Law Society of Scotland and several are STEP qualified meaning you can be confident that your will is being prepared correctly.

We will review your existing wills free of charge to check that they are valid and in line with current law.

We will store your wills free of charge so that they are protected from being lost or destroyed or falling into the wrong hands.

For a New Year’s resolution that’s easy to stick to, call Blackadders today to make your will!

Joanne Grimmond,
Partner
@jo_blogs_law
www.blackadders.co.uk

“You mean more to me than anything in the world and I need you to believe me…”

It was announced yesterday that Prince Harry has become engaged to US actress and star of TV show Suits (Rachel Zane), Meghan Markle.

With the wedding predicted to take place in May 2018, there is much speculation about whether Prince Harry and Meghan Markle would or should enter into a pre-nuptial agreement prior to their marriage.

Currently around 50% of marriages end in divorce. 

What is a pre-nuptial agreement?
A pre-nuptial agreement is a contract. It can be used to regulate the division of assets upon divorce or death.

Are pre-nuptial agreements enforceable in Scotland?
Although pre-nuptial agreements are untested in the Scottish courts, Scotland has long recognised that people should be able to enter into contracts as they wish. Pre-nuptial agreements are therefore valid in Scotland and the courts may take one into account provided that it was fair and reasonable at the time it was entered in to. 

Why have a pre-nuptial agreement?
The most common desire is to protect assets owned prior to a marriage; or assets that are inherited or gifted to one party so that they remain the property of that person and do not go into the matrimonial pot for division. The division of such assets are often the subject of contentious and bitter arguments in a divorce, with much time and money being spent arguing about how these assets should be divided fairly. A pre-nuptial agreement can exclude such assets from the equation. They provide a degree of certainty. Without a pre-nuptial agreement, the statutory provisions apply leaving scope for parties and lawyers to argue about it.

Should they or shouldn’t they?
Pre-nuptial agreements often criticised as being unromantic or as being indicative that one does not love or trust their partner enough. In my opinion, pre-nuptial agreements encourage a couple to be honest and upfront with one another about their financial situation and their expectations for the marriage in a responsible and realistic way.

“You mean more to me than anything in the world and I need you to believe me…” Rachel Zane, Suits. 

Not just where marriage is in contemplation…
With cohabiting couples now having limited rights to make a financial claim when the cohabitation comes to an end, a pre-cohabitation agreement can be entered into in the same way as a pre-nuptial agreement. For more information on pre-nuptial agreements please contact Blackadders Family Law team.

Joanne Murray, Associate Solicitor
Family Law
@FamilyLawJoanne
www.blackadders.co.uk

 

 

Season 2.8: How to appoint a Data Protection Officer? | Employment Lawyer in Your Pocket

blackadders logoSeason 2, Episode 8: Simon, Jack and Ruth answer a tweet from Avian ‘do I need to appoint a data protection officer (DPO)?‘ . They cover who needs it, who can  be a DPO and give examples of cases. There’s also some interesting theme tunes and a bit of the Simpsons banter thrown in!

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 2.7: How to record a disciplinary hearing?
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
@CorpLawyerRuth
@BlackaddersLLP

#ELIYP

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