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

Season 2.4: How to deal with copyright & trademarks? | Employment Lawyer in Your Pocket

blackadders logoSeason 2, Episode 4: Simon and Jack are joined by Blackadders, Senior Solicitor in Corporate & Commercial law, Ruth Weir.  They respond to an email by the BIG Partnership ‘Who owns intellectual property created during employment?’. They cover Copyright, Trademarks and Rights to IP. In addition to this Ruth gives her Top Tips. Which “poem” did you like best and do you think Ruth will ever return to ELiYP?

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 2.3: 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

Getting a ticket from a private car park – Do you need to pay?

A lot of people think that if you park your car in a private car park owned by, for example, the local supermarket or a big hotel, and you get a penalty ticket due to overstaying, or not being a customer, you don’t have to pay it.  “Only the state can fine people”, they say, “and since when is Morrison’s the state?”

You may also hear: “There’s no law of trespass in Scotland.  I can’t charge you £85 just because you walked into my front garden, can I?”  Or: “If this is legal, what’s to stop them charging you a million pounds?”  So the advice about the penalty ticket is – bin it.  But is that correct?

Normally a matter as trivial as an £85 parking ticket would barely make it to the Sheriff Court, and we would be left guessing what the law on the matter might be.  But, extraordinarily, a case deciding this very point went all the way to the Supreme Court in 2015, and the judgment makes for interesting reading.

The case concerns a Mr Beavis, who left his car in the car park attached to the Riverside Retail Park in Chelmsford. There were about 20 signs at the entrance to the car park and at frequent intervals inside it, all large and prominent, so that any reasonable user of the car park would have had a fair opportunity to read them.  The wording, mostly in black print on an orange background, was:

“2 hours maximum stay.  Failure to comply with the following will result in a Parking Charge of £85.  Parking limited to 2 hours (no return within 1 hour).”

The court held that this amounted to a contract between Mr Beavis and the car park.  Mr Beavis had permission to park his car in terms of the notice posted at the entrance, which he accepted by entering the site. He was well aware of the terms when he parked, or ought to have been aware of them. Those terms were that he would stay for not more than two hours, and that if he overstayed he would pay £85.

Mr Beavis’ solicitors accepted that there was a contract, but argued that the £85 charge fell foul of a well-established rule that “penalty clauses” in contracts are unenforceable.  These are clauses in contracts which say that in the event of a breach, the defaulting party will pay some exorbitant amount of money to the other party, out of all proportion to any loss which can have been suffered.  The car park, they said, had not suffered any loss at all in reality, so the purported charge was simply intended as a punishment, and was an unenforceable penalty.

The Supreme Court disagreed.  They thought that it was perfectly reasonable for the car park to discourage inconsiderate motorists from occupying parking spaces for too long, thereby reducing the space available to other members of the public.  Also, the charges were necessary so that the car park could make a profit and be able to stay open.  In these circumstances the car park had a legitimate interest in imposing the £85 penalty, and this was the only reasonably practicable way to enforce its interests.  £85 was not out of the way in all the circumstances, bearing in mind the usual level of penalties imposed by traffic wardens on public streets.

So, Mr Beavis had to pay up.  Fortunately for him, this was a test case for the car parking industry and it had been agreed that there would be no cost implications for him in taking the case to the Supreme Court, or it would have been the most expensive parking ticket in history.

In April this year a similar case appeared in the humbler surroundings of Dundee Sheriff Court.  In this case a Ms Mackie persistently parked in a private car park outside a relative’s house.  Signs showing the parking terms and warning her of the penalties for overstaying were displayed prominently.  She ignored the signs and binned the penalty notices as she received them, eventually racking up a total of £18,500 in penalties.  Sheriff George Way found her liable to pay the car park this sum, on the same reasoning as the Beavis case.

The correct legal position is therefore that if you drive to a private car park where the terms and conditions are clearly displayed along with a warning of the penalty charges, and you park there, you may be agreeing to those charges.  So long as the penalty charge is not unreasonable, the likelihood is that will be liable to pay it.

Of course, the situation would be different if the terms and conditions of parking were not clearly displayed, or if the penalty were a ridiculously huge sum.  Also, intriguing legal arguments could still spring up in other circumstances over whether a landowner has a “legitimate interest” in imposing a penalty on trespassers.  However, in most cases, it seems that if you get a private parking ticket the “just bin it” advice is not good.

For more information or advise on this, contact the Dispute Resolution team at Blackadders.

Richard Godden, Dispute Resolution
Partner
@The_PIMan
www.blackadders.co.uk

 

 

I’m all about the base, database, no trouble

By now everyone will have seen the headlines and heard the acronym many times, but in case you’ve been camped in a remote jungle for the last few months, major changes are coming to data protection rules in Europe through GDPR.  The General Data Protection Regulation (or GDPR) will be implemented into the UK through the Data Protection Bill 2017, which is currently going through the parliamentary processes.

What Changes?

Under the new rules, data subject will get enhanced rights providing increased control over the collection and use of their personal data.  There will also be further obligations on data controllers with a move towards greater accountability and additional record keeping.  However, the overall principles remain the same and the changes are essentially incorporating what could currently be described as “best practice”.

Does It Really Affect Us?

Recent figures suggest that a substantial number of organisations do not think they will be actually affected by the rule changes and (un?)surprisingly 1/3 are unsure on where their data is stored.  The reality is, however, that from 25 May 2018 any organisation that processes personal data will require to be GDPR compliant.  “Processing” is defined very widely and includes holding, collecting, recording, amending, storing, organising, altering, using and deleting personal information which essentially means anything done with personal data will be covered.

A further substantial change, and certainly the one that has made most headlines, is the increase in potential fines to £18m or 4% of global turnover (well up on the current £500,000 level).  It is important to note that this is the maximum level of fine, so not all businesses will be hit with that level of penalty.  But it is clear that the days of budgeting to cover any potential data protection fine are gone and businesses need to be looking at getting GDPR compliant.

Steps to Take

It is clear that this is not something that can be ignored or even pushed back to next quarter.  Organisations should start planning now and allocate resources (financial and organisational) to reviewing their databases.  The following are steps which can be taken and should help in becoming GDPR compliant.

Data Audit

To fully comply with the new accountability and record keeping requirements, organisations will need to do a data audit to understand personal data currently held.  It is important to identify all data sets held and organisations should consider looking at (i) what data it has, (ii) how it comes into the organisation, (iii) how it is used, (iv) who it is shared with and (v) when it is deleted or destroyed.  All other steps will follow on from this so it is a critical step in getting GDPR compliant and should be started as soon as possible to give time for the other steps to be completed prior to May 2018.

Basis for Processing

Once an organisation has completed a data audit, it should consider the legal basis for processing information.  Under data protection rules, there must be a lawful basis for all processing (either consent, contractual necessity, compliance with legal obligation, vital interests, public interests or legitimate interest).  Different individual rights will arise depending on the basis relied upon, so careful consideration should be given to which basis is best for an organisation.  As a general rule, consent should not be relied upon if possible to avoid any issues if an individual withdraws consent midway through processing.

Privacy Notice & Policies

The privacy notice will be one of the key pieces of information to be provided by any data controller, setting out what data is collected, how it is processed and who can access it.

Additionally, organisations will need to review policies and procedures to make sure they can respond to any requests within the given timescales (i.e. one month for access requests) and to monitor any breaches, deal with notifications within the short timeframe and mitigate any impact on data subjects.

Educate

Although final important step for initial compliance is to educate; there is little point getting all rules and procedures in place if those within the organisation are not aware or do not follow them.  Organisations should make sure all staff are aware of the relevant rules and the rules should be actively enforced.  Organisations might consider having someone designated to deal with data protection so staff know where to go to ask questions and to get answers.

Regularly Review

So it’s not strictly a point for initial compliance with the new rules but it is important going forward, an organisation will not be able to just review once and never again.  The above steps should be done regularly to see if there are any issues needing corrected or gaps needing plugged and check the current procedures in place remain fit for purpose.

Getting Help

For more information or help getting GDPR compliant, contact the Corporate Team at Blackadders.

 

Ruth Weir, Corporate & Commercial
Senior Solicitor
@CorpLawyerRuth
www.blackadders.co.uk

Season 2.3: How to deal with stubble & tattoos? | Employment Lawyers in Your Pocket

blackadders logoSeason 2, Episode 3: Simon & Jack answer a tweet from Insights  ‘Can employers insist on male employees being clean shaven? What about tattoos?’. They don’t hold back addressing both issues as well as giving examples of previous cases of discrimination. In addition to this there is a few dodgy impersonations to keep you amused! Can you guess the Harry Potter character that Jack couldn’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 lastest episodes here:
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

Why Lord Sugar isn’t sweet when Apprentices Mis-sell.

For those of us still hooked on the TV show, “The Apprentice”, you are bound to have noticed that nothing invokes the scorn of Lord Sugar more than when candidates describe their goods or services with a dash of creative licence. Whether it be organic burgers that aren’t so organic or French mussels which are more at home in Brighton than Brittany there is a real legal reason why Lord Sugar has to come down hard when candidates push the truth a little too far.

The primary legislation governing this area is called the Consumer Rights Act 2015 and this lays out the various rights consumers in Britain enjoy when buying goods and services. When it comes to the description of goods, the law requires that every contract is deemed to have an implied term that the goods will match the description given by the seller. It doesn’t matter if the goods were available for inspection or if the seller later amends the description; if the original description is false then the buyer has certain legal rights.

In general these rights entitle a consumer who has been mis-sold a product to either reject the goods (subject to certain time-scales); obtain repair or replacement of the goods; or, have the purchase price reduced to reflect the mis-description.

The law further protects consumers by presuming that any mis-description discovered by the consumer within 6 months from when the goods were delivered existed at the time when the product was originally bought and it is up to the seller to prove otherwise.

In addition to these civil legal rights that consumers enjoy, Trading Standards Officers also have the power to bring quasi-criminal proceedings against those who have deliberately or recklessly mis-sold goods and services. Accordingly, it is hardly surprising that Lord Sugar keeps a careful eye on the activities of his candidates and hopefully this reinforces the point that mis-selling goods is no light matter.

If you have been mis-sold goods or services or have any questions arising from the contents of this blog please contact our Dispute Resolution Team who will be happy to assist you.

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

 

 

 

Lord Alan Sugar: Photo by James Cronin, www.flickr.com, 2009