Irish Series: Repeal

Tomorrow, 25th May 2018, is the day that Irish voters go to the polls to take a decision on whether or not to repeal the 8th Amendment to the Constitution of Ireland. This is a significant day for the country, for the citizens and for Ireland in the eyes of the world.

The 8th Amendment means that the life of a foetus is given an equal right to life to that of the mother, effectively meaning that abortion is prohibited, even in cases of rape or fatal foetal abnormality. In exceptional circumstances, if there is a real and substantial risk to the life (as opposed to the health) of the mother, doctors can intervene to save the mother’s life over the foetus. Often this intervention takes place too late to save either the baby or the mother.

Many people in Ireland consider this to be reproachable and inhumane in circumstances where a woman cannot decide what happens to her body, how and when a decision is taken or even take steps to protect herself and her family without the potential to be criminalized, as they require the Minister for Justice and Equality’s consent to travel abroad for an abortion. This consent is rarely sought and even rarer given.

The Yes campaigners have been working hard to bring these issues to the fore of Ireland’s psyche for several years, and after years of campaigning for change, have managed to do so. This struggle was not without suffering, and came at the cost of countless women’s lives over the decades, many of which have been openly discussed in the run up to this emotional and controversial referendum, most notably the case of Savita Halappanavar, who died unnecessarily of septicemia following a miscarriage, having been repeatedly refused an abortion.

In a country which has Catholicism at the core, the Repeal campaign has faced an uphill struggle. Many Irish people do not agree with abortion on account of their religious beliefs. However, this is not about whether voters believe in abortion or not. Voters are being asked to decide whether in certain circumstances it should be right for a woman to decide what happens to her body. It is about giving women in Ireland, and not just Irish women, the right to choose what is right for them, their families and their mental health. It is a decision about whether the unborn foetus’ right to life should continue to be enshrined in the Irish Constitution or whether this should be legislated upon, and thereafter strictly regulated.

This decision affects not just Irish women but also asylum-seekers, refugees, victims of trafficking and undocumented women who do not have the right to travel freely between Ireland and the UK to procure an abortion or have the financial means to do so. These women do not have the right to vote in the Referendum and will have no say today.

Many people don’t believe that abortion is right in certain circumstances. However, whether you believe in it or not, the people of Ireland should pass that decision on to women and their families to make. No-one should be subject to a law which inflicts pain and suffering in the way that the 8th Amendment does. No-one should have someone else’s religious beliefs imposed upon them. Abortions take place in Ireland every day of the week. Women travel abroad seeking abortions and will continue to do so, illegally, if the Referendum does not pass. Young women, sisters, daughters, nieces and friends will continue to buy abortion pills online without access to proper medical care. Some will die, by their own hand or as a result of a regime which the State imposes upon them.

If you think that treating women with respect, trusting doctors to do what they have been trained to do and putting an end to inhumane treatment of women, for example where a doctor has to wait until a woman’s fallopian tube has ruptured before that can act on an ectopic pregnancy that they know isn’t viable, then you are a Yes voter, whether you agree with abortion or not.

If you have a vote in Ireland, vote to repeal a bad law, an unchristian and inhumane law, and to change Ireland for the better.

As an Irish woman, Caoimhe Boyce (cboyce@meaby.co.uk) is in favour of Repealing the 8th Amendment. She encourages you to vote if you can.

Are you ready for GDPR?

New laws come into force this Friday in the UK (25 May 2018) known as the General Data Protection Regulations (GDPR) and are applicable across the European Union.   The new Regulations represent a wholesale update of the current UK laws on data protection which date back to 1998.

For many organisations the mere mention of ‘GDPR’ fills many with complete dread. Recent statistics show that less than a third of organisations feel that they are ready for GDPR and half who know that GDPR will apply to them admit a lack of understanding of the data that they collect and process.  Other problems include gaps in employee training with many not understanding the new responsibilities that come with GDPR.

More worrying for organisations are the massive financial penalties that they could face if they are found to be in breach of the new GDPR laws.  The maximum penalty is 20 million Euros or 4% of global annual turnover.  Although this is worrying for many organisations there is a lower tier fine of 10 million Euros or 2% of global turnover.

It is however likely that higher tier fines will be reserved for the more serious infringements and that for the vast majority of organisations fines will be issued by the Information Commissioner’s Office (ICO) on a case-by-case basis in the spirit of being ‘effective, proportionate and dissuasive’.

The reality however is that the ICO will continue to operate in a similar vein to how it has been doing and that fines will be a last resort. This has been confirmed by Elizabeth Denham – the current Information Commissioner although she has dismissed predictions that there will be a period of grace where the ICO will be more lenient, as she believes that businesses have had two years to prepare for GDPR.

The good news is that if you are currently compliant with data protection requirements then it shouldn’t be too traumatic to extend compliance to the new GDPR requirements.

This article is therefore designed to gently point you in the right direction and to highlight the main changes that you need to be aware of by way of assisting with updating any policies and procedures and to promote general compliance with GDPR.

There is a lot of information out there on all things GDPR however the Information Commissioner’s Office (ICO) has set out some useful guidance and has made reference to 12 steps that it recommends that organisations should adopt.   These 12 steps are common-sense but there are some new steps that organisations need to take to ensure compliance.

  1. Awareness

Organisations need to ensure that decision makers and key personnel are aware of the new legislative requirements that are GDPR, their likely impact and to identify areas that are likely to cause difficulties and to review any resourcing difficulties that prevent compliance.  The implementation of GDPR could have significant resource implications for larger organisations if left to the last minute.

  1. The Information that is held

Organisations need to document the personal data that they hold and where that data has come from and with whom it is shared.  By way of example when recruiting candidates for employment a record should be kept of CV’s received and where they came from and with whom they are shared.   Other personal data can include employee bank account details, national insurance numbers, and sensitive data for example sex race and ethnicity.   It is a good idea to organise an information audit across the organisation or within particular business areas.

  1. Update and communicating Privacy notices

It is a good idea to review and update privacy notices and to plan ahead in time for the implementation of GDPR.   In particular organisations should set out in their privacy notices the legal basis for processing personal and other data, how long such data is retained and also to clarify the right to complain to the ICO.    It is important for information to be provided in  concise, easy to understand and clear language.

  1. The rights of individuals including employees

Individuals including employees have many rights under GDPR including the following:-

.  The right to be informed

.  The right to access data held on themselves

.  The right to  have inaccuracies corrected

.  The right to have information erased known as the right to be forgotten.

.  The right to restrict processing

.  To right not to be subject to  automated decision making and profiling.

.   To right to prevent data being sent to third parties for the purpose of indirect marketing.

.   The right to object and

.   The right to data portability

  1. Changes to Subject Access Requests (SAR’S)

There are changes in this arena with the abolition of the £10 fee although organisations can charge for excessive requests or even refuse such requests.   There will also be a month within which to respond to such requests in place of the current 40 days time limit.  There is also the obligation to provide data subjects such as employees with additional information, for example data retention periods and on their legal right to have data corrected that is inaccurate.    Organisations should consider whether it is feasible or desirable to develop systems that allow individuals to access information on-line which should prove less cumbersome than having to provide and arrange large volumes of physical data.

  1. Lawful basis for processing personal data

The ICO recommends that organisations should review the types of data that they are processing and to document the legal basis for carrying out each type of processing.  These should also be set out in privacy notices.    It should be possible to review the types of processing activities carried out and to identify the lawful basis for doing so.

  1. Consent

Consent to process data must be provided freely and explicitly and the ICO guidance suggests that organisations should review how they are seeking, obtaining and recording the consent of individuals including employees.  The GDPR standards for consent are that it needs to be specific, granular, clear, prominent, opt-in, properly documented and easily withdrawn.  In an employment context this can be done as a separate letter for an employee to sign when they agree to any offer of employment which does not form part of any contract of employment.   Consent cannot be inferred from silence, inactivity or pre-ticked boxes it must be explicit consent from data subjects.

  1. Children

This is a new requirement under GDPR.   ICO guidance indicates that the UK is likely to legislate to provide for anyone under 13 to be classified as a child and to provide for special protection for children’s personal data especially relating to commercial internet services.  GDPR requires organisations to introduce systems for verifying individual’s ages and to obtain parental or guardian consent.   Any privacy notices also need to be in clear simple language that children will understand.

  1. GDPR breaches

There will be a general duty to notify the ICO of certain breaches for example any breaches resulting in damage such as identity theft or breaches of confidentiality.  The ICO recommends that procedures are in place to detect, report and investigate any personal data breaches.  Breaches should for example be notified to the ICO which result in discrimination, damage to reputation, financial loss, loss of confidentiality or any other significant economic or social disadvantage to an individual.

  1. Data Protection by design and data protection impact statements

It is recommended that organisations familiarise themselves with the ICO’s Code of Practice on Privacy impact statements as well as the latest guidance from the Article 29 working party and to establish how to work out how and when to implement them within your organisation.   A privacy impact statement is required in situations where data processing is likely to result in a high risk to individuals for example:-

.  Where new technology is being deployed

.  Where a profiling operation is likely to significantly affect individuals; or

.  Where there is processing on a large scale of special categories of data

It is therefore vital that all organisations address any high risks involved in the processing of data to ensure that they can address those risks.

  1. Data Protection Officers

It is important that organisations designate someone to take responsibility for data protection compliance and to clarify where they will sit in the organisations structure for example in the legal department or regulatory affairs by way of example.   Consideration should be given to formally designating a Data Protection Officer.

  1. International

If the organisation operates in more than one EU member state with cross-border processing then a lead data protection supervisory authority is recommended.  A supervisory authority must also be identified in the State where the main organisation’s establishment is located.

Time is ticking for organisations to get their houses in order and it is hoped that this article will prove useful in addressing some of the concerns and to pinpoint what is important in complying with the GDPR.

Steven Eckett is Head of Employment at Meaby & Co etc for timely advice: seckett@meaby.co.uk or call 0207 703 5034.

London Legal Walk

Ten members of the firm and two of their offspring took part in the London Legal Walk on 21st May. There were 758 teams and 13,000 walkers in total. The 10km route took us through the Temple, St James Park, Hyde Park and past Buckingham Palace.

The weather was perfect and we all had a fun time, rounded off by refreshments at the street party afterwards. There are a few people hobbling around the office this morning, though.

We raised £970 for the London Legal Support Trust http://www.londonlegalsupporttrust.org.uk/about-us/ which works to support law centres and legal advice agencies by providing them with grant funding and other forms of support.

Thank you to everyone who took part in the walk and everyone who supported the team by sponsoring us.

Chigwell May Fayre

Meaby & Co teamed up with Haven House Children’s Hospice https://www.havenhouse.org.uk at the Chigwell Fayre on Sunday 20th May.

We ran a competition to win a luxury Fortnum & Mason hamper. In order to be in with a chance to win, members of the public had to guess how many balloons were in the Meaby Mini. The correct answer was 174, no one guessed 174 on the nose, however we did have two guesses at 175 who we are now contacting to tell them the good news, that they will each be getting a Fortnum & Mason Hamper sent to them.

Haven House ran a “Play your Cards Right” competition. There were also games for the children and special Meaby cakes and balloons. All those who attended had a great time and we raised a considerable amount and raised awareness of Haven House Childrens Hospice.

We hope to see you all there next year.


 

 

Stamp duty revamp in wales leads to new land transaction tax

On the 1st of April 2018, a new property tax came into force, affecting all properties purchased in Wales.

Land Transaction Tax replaces Stamp Duty Land Tax in Wales, and is payable when you buy the freehold or leasehold interest in any property or land above £40,000.

The new tax is largely in line with Stamp Duty Land Tax, with the intention of providing stability and reassurance to the property market.  The tax bands have been tweaked slightly though, ostensibly to simplify the tax and to make it fairer, and to ensure that they properly reflect the property market in Wales. Land Transaction Tax is collected by the Welsh Revenue Authority rather than the Inland Revenue.

The key difference is that no Land Transaction Tax is payable on residential properties bought for £180,000 or less, whereas only residential properties bought for less than £125,000 in England will qualify for the zero rate.

This means that a property purchased in beautiful Anglesey for £225,000 will now incur Land Transaction Tax of £1,575 rather than the old Stamp Duty Land Tax rate of £2,000.

Land Transaction Tax rates vary slightly for commercial properties, and the 3% surcharge for “additional properties” or “second homes” still applies in Wales.

If you are buying or selling a property, whether in England or Wales, please contact Andy Roscoe at Meaby & Co for advice: andy@meaby.co.uk or call 020 7703 5034.

Irish Series: Court of Appeal suspends finding that State breaching Right to Personal Liberty

The Irish Court of Appeal has deemed a key provision of the Mental Health Act 2001, which governs the long term detention of up to 100 people in psychiatric institutions and the Central Mental Hospital in Ireland, to be unconstitutional.

However, due to the “potentially chaotic and catastrophic consequences” of the finding, the court has suspended the declaration of unconstitutionality for a period of 6 months so that appropriate laws can be enacted to address the fallout position.

The finding arose on an appeal by the State against findings of the High Court in proceedings taken by a man who was detained in a psychiatric hospital in May 2015 on foot of an admission order after he suffered a serious psychotic episode. The detained man was automatically entitled to a review of his detention six weeks later and again after 3 months. In November 2015, a doctor deemed him to have recovered sufficiently to be discharged if he was to get the appropriate residential support, however funding for supported accommodation was not provided for him until 2017, which effectively meant that the man was detained indefinitely in a psychiatric ward.

The High Court ruling in May 2017 held that a person detained under the provision of the Act for a lengthy period was entitled to challenge the lawfulness of their continued detention at appropriate intervals before the Courts.

The State appealed the High Court decision and the Court of Appeal concluded that Section 15.3 of the Mental Health Act 2001 was unconstitutional, which provides for the making of orders extending periods of detention by up to 12 months. The Court said that the section meant that there was no effective procedure or method whereby an involuntary patient detained for extended longer periods could seek an independent review of their detention within a reasonable time.

The outcome of the finding means that the Court has found the State to be failing in its duty to vindicate the detainee’s right to personal liberty, amounting to a breach of Article 40.1 of the Constitution.

A finding of unconstitutionality demands an “immediate and imperative response” by the Oireachtas and Government to legislate in relation to the issue, hence the decision to postpone the finding. The Court learned that there are currently 78 patients who are the subject of the long term detention orders, with a further 15 patients at the Central Mental Hospital. If the affected patients were released as a result of the finding of unconstitutionality of their detention at this time and without the appropriate measures being out in place to safeguard them, it could have very unfortunate consequences for their safety and personal welfare.

Our Irish qualified solicitor Caoimhe Boyce keeps her eye on the legal news in Ireland. For further discussion or to get her views on any matter, contact her on cboyce@meaby.co.uk.

Meaby & Co involved in an important case authority on the Transfer of Undertakings

An appeal to the Employment Appeal Tribunal (EAT) has successfully been defended by Meaby & Co and in doing so has clarified the law on the complex issue of the Transfer of Undertakings (TUPE).  The relevant authority is Hare Wines Limited -v- (1) Mrs S Kaur and (2) H&W Wholesale Limited UKEAT/0752/16/JOJ.

Background

Meaby & Co acts for Mrs Kaur who had been employed for some considerable time as a cashier at a cash and carry business.  She was originally employed by H&W Wholesale Limited (H&W) but when the business faced financial difficulties the stock and the staff were transferred to Hare Wines.  In reality it was the same Directors involved in both businesses.   This automatically triggered the  application of the Transfer of Undertakings (Protection of Employment) Regulations 2006.

Consequently Hare Wines took on all staff with the exception of Mrs Kaur who without warning was dismissed two days before the transfer of the business on the basis that her role was ‘redundant’.   H&W failed to pay the Claimant any redundancy pay or her full notice pay entitlement that she was entitled to on the basis that they could not afford to do so.

Mrs Kaur then issued a claim to the Employment Tribunal that she had been unfairly dismissed and she also sought her redundancy pay and arrears of notice pay.

At the time of issuing her claim, Mrs Kaur failed to set out  that she was seeking compensation for a breach of the TUPE Regulations as at that time she was a litigant in person.  At the Preliminary hearing by which time she was legally represented, the Employment Tribunal judge allowed Mrs Kaur to pursue her TUPE claim even though it was many months out of time which in itself was incredibly lucky.

The Employment Tribunal who heard the claims determined that Mrs Kaur had been automatically unfairly dismissed and that the sole or principal reason for her dismissal was the transfer of the business to Hare Wines which was contrary to Regulation 7 of TUPE 2006.  It also held that Mrs Kaur had not objected to the transfer at  a meeting that took place two days before the transfer, which was the line of argument pursued by Hare Wines in the hope that liability for the claims remained with H&W and did not transfer.

On appeal Hare Wines suggested that the employment tribunal had erred in its decision set out in its written judgment and pointed to their finding that the reason for the dismissal was the previous and anticipated on-going difficulties in the working relationship between Mrs Kaur and her Manager – Mr Chatha.   Hare Wines argued that the employment tribunal should have found that the cause of the dismissal was about the difficult working relationship which it was anticipated would continue and which were reasons that were purely personal to Mrs Kaur.

The Employment Appeal Tribunal courtesy of Mr Justice Choudhury QC held that there could be no personal reasons defence which Hare Wines had sought to use, to avoid the application of TUPE.

The EAT also said that it was important to consider worker’s rights and the need to be careful of expanding the categories of employers’ defences which may undermine the protection that Parliament intended to be afforded to employees like Mrs Kaur in this situation.

The EAT in arriving at its decision also relied on the  European Court of Justice authority of P Bork International -v- Foreningen AF Arbejdsledere i Danmark 1989, which makes it clear that an important factor in determining the reason for the dismissal is its proximity to the transfer.

It was also determined that although the relationship difficulties between Mrs Kaur and Mr Chatha were expected to continue after the transfer, it was open to the Employment Tribunal to identify the transfer as the strongest reason for the dismissal.

In the circumstances of this case, it was held that the although there were these difficulties they were not acted upon until almost the point of the transfer of the business and that therefore  the transfer itself was the sole or principal reason for the dismissal.

Notwithstanding this decision, Hare Wines are currently seeking permission to appeal this narrow point on the issue of a personal relationship defence to the Court of Appeal and Mrs Kaur is now waiting to see if the Court of Appeal will grant  permission to allow the appeal to proceed.

It is also important more than ever that business owners who are considering taking on a new business and who inherit transferring employees under TUPE, deal with any such work place difficulties by following fair and reasonable procedures. Any good due diligence exercise should flag up such difficulties in advance of any transfer.   It is also not acceptable to simply target those employees who are perceived as difficult and to decide not to take them on.   This creates legal risk and exposure as this case highlights.

As always it is best to seek timely legal advice when thinking about buying or selling a business due to the legal ramifications of TUPE.   Please contact Steven Eckett at Meaby & Co for timely advice: seckett@meaby.co.uk or call 0207 703 5034.

Blogs

I Just Want What I’m Entitled To

Clients frequently say to me that they just want what they are entitled to  – and therein lies the problem. As the law currently stands, there is no such thing as strict entitlement in family law and no legal adviser can tell you exactly what the outcome of an application for financial remedies, within divorce proceedings, will be.

Instead, the Judge must act fairly between the parties and take account of the checklist of factors set out in Section 25 of the Matrimonial Causes Act 1973. These are as follows:-

  • the income, earning capacity, property and other financial resources of each of the parties;
  • the financial needs, obligations and responsibilities of each party;
  • the standard of living enjoyed by the family before the breakdown of the marriage;
  • the age of the parties and the length of the marriage;
  • the contributions of each party (both financial and other contributions, such as caring for children);
  • any benefits that will be lost by a party as a result of the divorce;

The Judge must also take into consideration the principles which have been established through previously decided cases (known as precedents). The two main principles are “equality/sharing” and “need”. The principle of equality/sharing means that in the vast majority of marriages which have lasted for more than around five years, or any marriage where there are children, the starting point will be an equal division of the matrimonial assets. The principle of need means that in cases where a party (particularly a party who has the care of minor children) is able to demonstrate that half of the matrimonial assets will not be sufficient to meet their reasonable needs and/or the needs of the minor children, that party may be able to persuade the Court that they should receive more than half of the matrimonial assets.

Aside from this, the Judge has a very wide discretion as to the orders s/he deems to be appropriate.

An experienced solicitor will be able to give their client a good idea of the range of likely outcomes of an application but will not be able to give their client a definitive answer as to outcome.

This uncertainty causes difficulties for clients and lawyers alike. Clients are not able to plan for their future with any sense of security and lawyers are not able to meet their clients’ expectations with regard to clear and firm advice.

There are calls from many quarters, including Resolution (the leading organisation of family law solicitors in England and Wales)  for the law to be made more clear.

If you would  like further guidance regarding property and financial settlements upon divorce, it is recommended that you contact Head of Family  Law, Joanna Toloczko at Meaby & Co for timely advice: jtoloczko@meaby.co.uk   or call 0207 703 5034.

Yet another authority on employment status in the ‘gig economy’

The Employment Appeal Tribunal has upheld an Employment Tribunal decision from last year which found that an Addison Lee cycle courier was a worker and  was not a self-employed contractor.

The case brought by Christopher Gascoigne was sponsored throughout by the Independent Workers’ Union of Great Britain (IWGB).  This body has also been involved in sponsoring other important cases in this arena.

The Employment Tribunal at first instance found that Mr Gascoigne was not an independent contractor even though this was written into his terms and conditions which had to be re-signed every three months, with the strict stipulation that ‘ nothing in this agreement shall render you an employee, worker, agent or partner’ which was the argument put forward by Addison Lee.

They also argued that Mr Gascoigne was under no legal obligation to work and that he was free to accept or decline jobs that were offered to him when he logged onto Addison Lee’s system.   The Employment Tribunal found that this did not reflect the reality of the working relationship.

The Employment Appeal Tribunal found that Mr Gascoigne was in reality not free to decline jobs and that his location was tightly controlled to the point where he had a full working day with deliveries lined up in advance that he was obliged to carry out.  There was in effect no opportunity to reject the work.   It therefore boils down to the issue of control which is a fundamental ingredient in establishing employment/worker status.

The IWGB welcomed the decision and warned that it should come as nothing as a surprise and laid the blame at the door of the Government who it claims by doing nothing, are depriving workers of their full legal rights and who are failing to clarify the status workers in the gig economy as recommended by the Taylor review.

Once again this authority demonstrates that businesses in the gig economy cannot continue to circumvent employment laws but masquerading workers as self-employed contractors, and that by continuing to do so  they are at risk of challenge.

If you have any concerns about employment or worker status then contact Steven Eckett at Meaby & Co for timely advice: seckett@meaby.co.uk or call 0207 703 5034.

The History of Leasehold and its Reform

Medieval feudal law permitted tenants to live and work on land. The work would generally involve farming or craft. The produce was sold or given to the landowner to pay rent.

By the 11th century, the monarchy took control of the land and imposed tax on landowners to standardise the feudal system.

The 13th century saw the creation of estates. A tenant could live and work on an estate in fee simple and it could pass to their heirs. Whereas an estate for life would revert to the landowner after the tenant died.

Remarkably, the modern system of long leases with ground rents was only introduced in the 1920s.

Precipitated post-war construction in the 1950s witnessed a dramatic increase of flats and leasehold. However, by the 1960s many elderly leaseholders were being evicted from their dilapidated homes after their leases expired.

The press coverage resulted in the White Paper on Leasehold Reform. It described property reverting to a landlord at the end of the lease term without compensation as indefensible and Harold Wilson’s Labour government introduced the Leasehold Reform Act 1967 enabling leaseholders of houses to acquire their freehold.

Margaret Thatcher’s Conservative government introduced the Landlord and Tenant Act 1987 giving leaseholders a right of first refusal where landlords wished to sell their freeholds; and John Major’s Conservative government introduced the Leasehold Reform Housing and Urban Development Act 1993 enabling leaseholders to extend their leases or acquire their freehold.

The Great Estates (such as the Grosvenor Estate owned by the Duke of Westminster) feared the 1993 Act spelt their demise as they would be compelled to relinquish their freeholds. However, there were relatively few freehold claims as lease extensions were more popular and estates have used the income to regenerate.

In 1997, Tony Blair’s Labour government described leasehold as (surprise surprise) medieval feudalism and introduced commonhold (freehold ownership of flats with joint responsibility for the common parts) with the Commonhold and Leasehold Reform Act 2002. However, conflict with existing freehold law and poor promotion (not forgetting the distraction of the Iraq war) meant that it never gained traction (most importantly among mortgage lenders).

Leasehold is under scrutiny once more largely because of onerous ground rents and the Law Commission’s 13th Programme of Law Reform will herald the next chapter in the history of leasehold.

For expert advice on Leasehold law please contact Dominic Danvers on 020 3861 5154 or ddanvers@meaby.co.uk.