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

Should I Accept a Facebook Friend Request From My Boss?

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Have you ever experienced that awkward moment when you get a friends request from a relative stranger?  Worse still, have you ever experienced that awkward moment when you get a friends request from your boss?  It’s always going to be a dilemma.  Do you or don’t you?  Will you allow your boss to know the secrets which are contained on your timeline?  Or will you reject it and run the risk of that embarrassing conversation when your boss mentions his or her pending friends request.  And what are your concerns anyway?

Can my boss discipline me for posting a status update during working hours?

Potentially, yes.  However the answer to this question depends entirely on the content and precise wording of your employment contract or staff handbook.  Does your employer permit “reasonable use” of social media during working hours?  Or does your employer expressly prohibit use of social media during working hours?  Either way, if you are breaching the terms of your social media policy and your boss is a Facebook friend, it is entirely reasonable for the boss to take action against you in this respect.

Can my boss use information from my Facebook profile to discipline me? 

Again, potentially yes.  Over the past few years, employment tribunals have permitted employers to use information which has been gleaned from social media to dismiss employees.  In one recent case, an employee was dismissed for posting “OMG I hate my job! My boss is always making me do s*** stuff just to p*** me off”, forgetting that she was already Facebook friends with him.  He replied to the post stating, “that ‘s*** stuff’ is your job.  You seem to have forgotten that you have two weeks’ left on your six month trial period.  Don’t bother coming in tomorrow.  I’ll pop your P45 in the post.”  So again, using information from Facebook is entirely possible.

Is it ever unfair for my boss to rely on this type of evidence at an employment tribunal?

No, not really.  If you are friends with your boss on Facebook, any of your status updates will be fair game.  Recent tribunal decisions have held that even covert recordings which are “very distasteful” and “discreditable” will not alone render them inadmissible.  More and more frequently employees are recording formal meetings without the employer’s consent and then seeking to rely on this covert recording at any future tribunal hearing.  So, again it would be entirely reasonable for your boss to rely on your social media content at a future employment tribunal.

So should I accept a Facebook friends request from my boss?

One of the first things you learn when you begin your professional career is that you’re going to be spending a lot of time with your colleagues.  And if you’re lucky, some of these colleagues could become your friends.  Bonding with your trusted colleagues is a no-brainer however what about a friendship with your boss?  Having a positive, constructive and open relationship with your boss is always a good thing and, if you can cross that line into friendship (even if it is only Facebook friendship), then you are one of the lucky few!

P.S. And if you don’t want your boss to see that photo of you, tagged on Saturday night, sitting in a shopping trolley on Benvie Road with a can of lager in one hand and a kebab in another, you probably shouldn’t be posting it anyway.

Simon Allison
Partner – Head of Employment Law
@EmpLawyerSimon
www.blackadders.co.uk

Drive it on home – Drive time and working time

Q: What is a peripatetic worker?  A: A worker who spends short periods of time at various different places who travels regularly to perform their work.  Such an arrangement is likely then to involve a lot of driving.  Q: How, then, should time spent driving between different assignments be treated for the purposes of working time?

A: The Advocate General has offered some guidance following an opinion in Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL.  This case concerned Spanish workers who were employed to install and maintain security equipment at various locations across the country.  The workers were assigned to their employer’s head office in Madrid.  However, each worker had a specific area to cover.  They were provided with company vehicles and were required to travel from their homes to the various premises to carry out the work.  The employer’s policy provided that the first and last journeys of the working day (i.e. from the worker’s home to the first job and from the last job back home) were not part of working time.  In other words, they were only deemed to be working from the minute they arrived at the first job up until the minute they left the last job of the day.

The workers alleged that this practice infringed the EU Working Time Directive.  Following a referral from the Spanish court, the Advocate General has opined that for such peripatetic workers, who do not have a fixed or habitual place of work, time spent travelling from their home to the first assignment and then from the last assignment to home, should be regarded as working time.

There is no middle ground between working time and rest time.  The Advocate General was satisfied that the three conditions for working time were satisfied: (1) being at the workplace – met because the very nature of peripatetic work, involving daily travelling, renders travelling an integral part of the job; (2) being at the disposal of the employer – met because the travel  was to customer sites for the benefit of the employer, the routes being set by the employer who could change instructions at any time; and (3) that the employees be engaged in work duties – met because travelling was integral to the performance of the activity.

Jack Boyle 
Senior Solicitor – Employment Law
@EmpLawyerJack
www.blackadders.co.uk