Unfair Dismissal, Wrongful Dismissal and Discrimination

Dismissal – Key Issues to Consider

Employers must take great care to act fairly and lawfully when dismissing employees to reduce the risk of a claim being made at the Employment Tribunal.

The five potentially fair reasons for dismissal:

Conduct. This could be a single act of misconduct or a series of less serious acts

Capability or qualifications. This includes poor performance, ill-health and formal qualifications

Redundancy. This includes workplace closure, business closure, or reduced need for employees

Illegality. Where continuing to employ the employee in the position they hold would contravene a statutory restriction (for example, because of their immigration status)

‘Some other substantial reason’. This is a catch-all category of other potentially fair reasons.

If the employer does not have one of these reasons then the dismissal will be unfair even if a fair procedure is adopted. Once the employer has established one of these reasons it must act reasonably, and be seen to do so, before dismissing an employee.

The employer must follow a fair procedure.

Even if there is a potentially fair reason for dismissing an employee, an employer must still follow an appropriate fair procedure before deciding whether to dismiss. This means that it has carry out a proper investigation, consider alternative penalties, act consistently (by reference to how it has dealt with similar incidents) and generally act reasonably and fairly.

The employer must act reasonably in treating the reason for dismissal as sufficient to dismiss.

Even if there is a potentially fair reason for the dismissal and the employer has followed a fair procedure, the employer must also act reasonably in treating that reason as a sufficient reason for dismissal.

The employee should be dismissed in accordance with their contract.

Employees generally have a right to be given a period of notice (or, depending on their contract, a payment in lieu of notice if their employment is terminated). Employers must not base the dismissal on a reason that is discriminatory. An employer must not base a dismissal on a reason that is directly or indirectly discriminatory based on a protected characteristic, and must not discriminate against an employee during the dismissal process

Restrictive covenants and wrongful dismissal

Dismissing in a manner that breaches an employee’s contract is likely to lose the employer the benefit of any contractual rights, such as post employment restrictions preventing the employee working for a competitor. It would also result in the employee having a claim for wrongful dismissal.

Sometimes, from both a practical and commercial point of view, it is better to try to reach a financial agreement with an employee to leave. There are risks in proposing such a solution, so it is advisable to take legal advice before entering into any negotiations.

Qualifying periods

Generally, employees must have completed a qualifying period of two years’ continuous employment before they can bring a claim for unfair dismissal, although there are exceptions (for equality and/or discrimination claims).

Sometimes, from both a practical and commercial point of view, it is better to try to reach a financial agreement with an employee to ensure that they do not take any further action as a result of the termination of their employment. It is advisable that employers take legal advice before entering into any negotiations, and that a formal settlement agreement is signed by the parties.

For advice on all employment law issues, contact Charlotte Grew: 01488 683555 or cgrew@dhc-solicitors.co.uk

Terms and Conditions

The importance of good Terms and Conditions

Written terms and conditions protect your business, and enable two parties (e.g. customer and supplier, or joint venture partners) to understand their rights, duties and responsibilities in relation to a business deal. Well drafted terms and conditions should provide complete clarity for both parties on what should happen in a given situation, and avoid uncertainty and misunderstandings which can lead to unnecessary dispute.

You should consider including the following provisions when preparing terms and conditions for your business:

• A clear definition of the products, services or digital content to be provided

• Payment terms (including the right to charge interest for late payment)

• Delivery timeframes

• Guarantees or warranties

• Setting out what happens if either party is in breach of the agreement

• The duration of the agreement and the notice required from each party to end the agreement

• The law governing the contract

Consumer rules and guidance

There is extensive legislation to protect consumers (in particular the Consumer Rights Act 2015) which:

• Implies terms into contracts with consumers, giving consumers rights and remedies in respect of their purchases of goods, services and digital content.

• Requires that consumers are given certain minimum information before a contract is formed.

• Gives consumers entering into distance contracts for most goods, services and digital content a cooling off period, in which they can cancel penalty-free.

• Requires that any terms used in a consumer contract must be “fair”.

• Prohibits misleading and aggressive sales practices by the trader generally, both in advertising and marketing and in the terms themselves.

Generally the trader cannot contract out of its obligations or exclude or (unreasonably) limit its liability for their breach. Terms and conditions which attempt to do so will be unenforceable and their use may in itself be a breach of consumer protection law

Business-to-Business rules and
guidance

A trader’s dealings with business customers are far less strictly controlled than their dealings with consumers. Legislation and common law rules imply certain terms into contracts for the sale of goods and services between businesses, however in many cases these implied terms may be varied or excluded provided that it is reasonable to do so.

The important parts of standard terms are driven by purely commercial decisions and the business’s operating

procedure, for instance, payment terms or how delivery is to be effected. In particular, if the standard terms incorporate technical specifications, care must be taken to ensure that these specifications comply with the business’s standard terms

Incorporation of terms and conditions

A business’s standard terms and conditions will only be effective if they have been properly incorporated into a contract. Ideally they should be set out or expressly referred to in a contract that both parties sign. The next best option is for a business to bring its standard terms to the attention of the other party at the earliest possible opportunity in as much pre-contract and contract documentation as possible (this will also help in the event of a battle of the forms when two businesses are negotiating the terms of a contract and each party wants to contract on the basis of its own terms). This would include setting out the standard terms on the business’s website, brochures, purchase order forms, quotation acceptances and, if a course of dealing has arisen between the parties, on invoices and delivery notes.

Finally, when introducing new standard terms, a copy should be sent to every customer or every supplier stating that the new terms will apply in the future.

For assistance in preparing terms and conditions for your business, contact Charlotte Grew: 01488 683555 or cgrew@dhc-solicitors.co.uk

What to do when someone dies

There are many matters which require consideration at this difficult time. This summary is to assist you in dealing with the first steps.

Immediate steps:

  1. Register the death at the register office – 01635 279230 (West Berkshire) or 0300 003 4569 (Wiltshire)
  2. Find out if there were any specific wishes about funeral arrangements (this may be in the Will);
  3. Organise the funeral;
  4. Notify friends, relatives and employers / employees
  5. Put notice in the newspaper.

Practical Matters:

  1. Cancel all deliveries (papers etc.);
  2. Remove valuables from his/her home;
  3. Redirect mail;
  4. Inform the building, contents and car (if appropriate) insurers;
  5. Arrange for the immediate welfare of any pets. The Deceased may have provided for their long term care in his/her Will

Collect the following information:

  1. The Will;
  2. National Insurance Number, tax office and reference number;
  3. Date and place of birth, and date and place of marriage or civil partnership.
Will, Personal attorney  in Berkshire

Notify:

  1. The executor of the Will, and if there is no Will, an administrator of the estate will need to be appointed in accordance with the probate rules;
  2. If you need any help speak to a solicitor

Contact in due course:

  1. Banks and building societies;
  2. Department for Work and Pensions if receiving any benefits;
  3. Pension providers;
  4. Solicitor and accountant
  5. Deceased’s tax office;
  6. Landlord if deceased lived in rented property;
  7. Local authority – council tax, parking permit or if a blue badge was held for disabled parking;
  8. Care providers (Social Services or private provider);
  9. Insurance companies: travel, private health care, etc;
  10. Life insurance companies;
  11. Mortgage provider;
  12. H.P. or loan companies, credit and store card providers;
  13. Utility companies – water, electricity, gas and phone;
  14. TV/Internet providers;
  15. DVLA and passport office;
  16. Clubs and associations;
  17. Dentist or other healthcare
    providers;
  18. Creditors – anyone they owed
    money to;
  19. Debtors – anyone who owed
    them money;
  20. Digital account providers –
    email, social media, Amazon,
    eBay etc.

A solicitor can assist in notifying all the relevant organisations and obtaining the information required to apply for the Grant of Probate. Don’t forget, we are here to help as much as you would like.

To discuss this and to obtain more information contact:
Emily Payne at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

Providing for someone with a learning disability

Someone signing a will - Legal advice to help you provide for someone with learning difficulties


If you leave money to a relative or friend with a learning disability, or die without making a will, it could have unintended consequences.

  • If your relative or friend cannot manage their own money, the Court of Protection may need to become involved to assist in looking after the legacy. This can be complex and time consuming, and there are fees involved.

  • The person with a learning disability may have impaired understanding of the value of money and may be vulnerable to other people taking advantage of their new found wealth.

  • If the person concerned is receiving state benefits, the receipt of a legacy is likely to affect the amount to which they are entitled. Most benefits are subject to the person holding less than a statutory maximum of capital.
  • You may think of leaving your estate to your other children to use to help your child with a learning disability, but that may not be an appropriate solution, as there is no legal obligation on them to use it in that way, and the money might be treated as their money if they were to divorce, or go bankrupt, or die, or if they needed to claim benefits themselves.

    Discretionary Trusts

    The solution is to set up a Discretionary Trust within your will. You will appoint trustees who will support the person concerned to manage money and to make decisions as to how it should be used. The trust fund can be used to provide luxuries and additions to the person’s day to day needs, as well as having the flexibility to benefit other members of the family if needed.

    Contact Us

    A Will like this should be made by a solicitor who has experience of these types of wills. A Will is vitally important, particularly in these circumstances, and you should consider all the options with your solicitor who will write a will to suit you.

    To discuss this and to obtain more information contact:
    Emily Payne at Dickins Hopgood Chidley Solicitors,
    The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

    Lease extensions

    a key in a lock - Lease extensions, extending my lease, legal advice in Hungerford, Berkshire.

    If you have owned a leasehold property for over 2 years as a private individual, generally you will have a right to extend your lease (subject to qualifying conditions). This may be required when you are thinking of selling your flat or re-mortgaging, or you may wish to do it as an investment in your property for the future.

    The new lease would be for a period of 90 years plus the original term at a peppercorn rent.

    You should look at extending your lease if it has less than 90 years to run, as it can begin to devalue the property as the lease term shortens. When the lease drops below 80 years, the premium can increase significantly. Most mortgage companies will not accept leases of less than 30 years plus the proposed mortgage term.

    THE PROCEDURE

    Qualification

    Was the lease originally granted for a term of more than 21 years?

    Have you held the lease for at least 2 years or had the benefit of the lease extention process assigned to you?

    Valuation

    A specialist valuer will prepare a valuation of the lease extension and give you a suggested premium, using a special formula set out in the legislation.

    Notice of Claim

    We will prepare a notice to inform the landlord of your intention to purchase a lease extension. This is served on the landlord and any other parties to the lease (e.g. a management company).

    Landlord’s Counter-notice

    The landlord has 2 months in which to serve a counter-notice, either accepting your proposed terms or proposing new terms, or denying your claim. During this time the landlord is likely to instruct its own valuation of the property and may require access for this. They may also ask for a 10% deposit from you.

    Negotiations

    Within 2 months of the date of the counter-notice, both parties have the opportunity to negotiate agreed terms.

    First Tier Tribunal (Property Chamber)

    If an agreement cannot be reached, an application must be made to the Property Tribunal for a determination of the premium payable.

    Completion

    Once terms are agreed, or have been determined by the Tribunal, the landlord’s solicitor will provide the new lease and this will be signed by all parties and completed. This is the point at which you must pay the premium and costs.

    Costs

    As part of the legislation, the tenant is responsible for paying the landlord’s legal fees for service of the counter notice and preparation of the new lease, and the landlord’s valuation fees. These must be reasonable and if they are not agreed, an application can be made to the Tribunal for a determination of the amount payable.

    To discuss this and to obtain more information contact:
    Julian Dickins or Deborah Wason at Dickins Hopgood Chidley Solicitors,
    The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

    Buying your freehold

    Signing a document, to illustrate someone buying their freehold, having received legal advice from property solicitors in Hungerford

    If you live in a leasehold flat and fulfil the relevant qualifying criteria, it is possible to purchase the freehold of the building from the current freeholder.

    This will give you several advantages, including:

    1. Control over the management of the building, including insurance, maintenance, repair and decoration;

    2. Control over the charges you pay for the management of the building;

    3. It is likely to increase the value of your property.

    Before you proceed with a freehold purchase, you will need to discuss the matter in depth with the leaseholders of the other flats in your building and obtain a commitment as to those who are going to participate. This can be done by a “participation agreement”.

    To discuss this and to obtain more information contact:
    Julian Dickins or Deborah Wason at Dickins Hopgood Chidley Solicitors,
    The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

    Joint Ownership

    Row of Cotswold cottages - illustrating legal advice for jointly owning a house, from property solicitors in Hungerford Berkshire

    When two or more people are buying a property together, a decision needs to be made about how to own the property. There are two methods of joint ownership:

  • Joint Tenants: Each of you has an equal interest in the property and if one of you dies, the survivor will automatically inherit the whole of it.

  • Tenants in Common: Each of you has your own interest in the property, distinct from the other, which may be an equal or an unequal part. Your own share in the property would pass by your Will to whomsoever you choose. The amount of your share is usually based on your contribution towards the cost of the property or any work on it.
  • The method of ownership is important to consider in all cases, but particularly in certain circumstances:

    1. Where an unmarried couple is buying a property. The declaration made at the outset is the strongest evidence of intention in the event of a later dispute.

    2. Where you are making unequal contributions towards the purchase price and costs. The person contributing the larger amount of equity may wish to ensure that interest is protected in the event of sale of the property

    3. Where a third party (such as a parent) is contributing to the price or costs. The third party will be advised to obtain independent legal advice on the transaction and it is strongly recommended that an appropriate deed be drawn up setting out the respective interests or contributions of each party.

    4. Where you are buying the property as a buy to let investment. The method of ownership is likely to have tax implications which should be considered before the purchase.

    If any of these circumstances affect you, you must tell us before you purchase the property so we can ensure you receive the right advice and, if appropriate, enter into a declaration of trust. If there is no agreement between you at the outset, there may be problems in the event of separation, divorce or death and a division of the equity which does not truly reflect your intentions could result.

    Joint owners who wish to hold their property as tenants in common should consider entering into a declaration of trust to set out clearly the individual financial responsibilities for the property. Matters to consider are:

  • Who is responsible for the mortgage payments and in what proportions?
  • Who is responsible for the other outgoings (utilities, council tax etc.)?

  • Who is responsible for maintenance and repairs?

  • What happens if there is a change in those contributions?

  • What happens if one of the co-owners stops living at the property before it is sold?

  • What happens if one party wants to sell their share? Would the other party have a right to buy him or her out?

  • What happens if one of the co-owners dies?
  • We would also recommend that a restriction be placed on the property title to protect the interests of co-owners or third parties

    The law relating to joint ownership can be complicated and you may need to seek financial or tax advice before deciding what to do. Please speak with your conveyancer who will be able to refer you to a member of our private client team for further advice, if appropriate.

    To discuss this and to obtain more information contact:
    Dickins Hopgood Chidley Solicitors,
    The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

    Conveyancing process – flowchart for sellers

    To discuss this and to obtain more information contact:
    Dickins Hopgood Chidley Solicitors,
    The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

    Conveyancing process – flowchart for buyers

    To discuss this and to obtain more information contact:

    Dickins Hopgood Chidley Solicitors,
    The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

    Commercial property

    Commercial property being built - to illustrate commercial property legal advice from conveyancing solicitors in Hungerford Berkshire

    We are frequently instructed to act in connection with commercial properties such as shops, offices, industrial units, warehouses, hotels and public houses and even on a couple of occasions, public conveniences.

    1. Sale and Purchase

    We can advise on:

    a) The sale of a freehold property or the grant of a long leasehold interest in a property

    Every sale or purchase is slightly different. We like to be involved from the outset to ensure we understand your requirements and the rationale for doing what you are doing. Certain aspects are critically important to get right from the outset, particularly the VAT status of the transaction.

    We are on the panel of most lenders and will normally be instructed by a lender to act for them as well as you. This can often assist a transaction to run more smoothly.

    b) Conditional contracts for the sale or purchase of property

    A conditional contract may be required if something has to happen before a buyer will purchase but the parties wish otherwise to commit to a sale and a purchase. The most common condition is the grant of planning permission.

    c) Option Agreements

    An option is an agreement giving someone the right to buy a property on specified terms for a certain period. The price may be fixed or may depend on an outcome during the option

    period. An option agreement is often used to enable a developer a certain period in which to explore the planning potential of a piece of land.

    d) A deed of pre-emption

    A pre-emption right is a right of first refusal. A common use of such a right is when someone sells maybe a slightly more unusual property, often retaining adjoining land, and wants the right to be able to “buy-back” that property
    when it is next offered for sale

    e) Overage agreements

    Such an agreement is when an additional payment is due, normally to a seller on the happening of an event in the future. This will often be if planning consent is granted which enhances the value of land. The seller will then be entitled to the additional
    payment.

    2. Leases

    We can advise a landlord or a tenant in connection with the grant of a lease.

    We do like to meet you to discuss your requirements and to ensure that we understand what you wish to achieve. If a meeting is not feasible, we will report to you on the documents and we can then discuss with you on the telephone any issues arising from that report

    It might be that there is a lease of the property already in place and you wish for that lease to be assigned to you. We can advise you on the procedure and the various documents which will be required.

    We advise on licences to occupy which are suitable for a short-term let (no more than 6 months) or where space is shared.

    We also advise on the renewal
    of leases and the termination of leases.

    3. Landlord and Tenant Issues

    We advise on various issues which arise between a landlord and tenant including:
    a) Non-payment of rent.

    b) Claims for breach of covenant.

    c) Dilapidations.

    4. Planning

    We advise on planning agreements which are often required as part of the planning process together with Landowners’ Co-operation Agreements.

    5. Financing and Security

    We advise on mortgages, guarantees and debentures.

    We are often instructed by a lender whilst acting in connection with a purchase. Knowing our client can assist in that process.

    To discuss this and to obtain more information contact:
    Victoria Hopgood at Dickins Hopgood Chidley Solicitors,
    The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

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