Archive for month: August, 2018

The Summer of 2018 is gearing up to be one of the longest and hottest since 1976.   Whilst many welcome the hot weather, it can be problematic for employees to work in and can literally cause headaches for employers.

It is a myth that there is a set temperature beyond which employees have the legal right not to attend or undertake any work.

Here in the UK there is no fixed minimum or maximum temperature requirement for the workplace.   The Health and Safety Executive suggests that the temperature should be ‘reasonable’ which is not too helpful.

The definition of what is a reasonable temperature to work in also depends on the type of work and workplace.  The requirement to work outside for example is different to working inside where there may be air conditioned facilities.

The Health and Safety Executive has defined an acceptable zone of thermal comfort for most people in the UK as lying ‘roughly between 13c (56f) and 30c (86f), with acceptable temperatures for more strenuous work activities concentrated towards the bottom end of the range, and for more sedentary activities towards the higher end’.

The Chartered Institute of Building Services Engineers recommends the following temperatures for different working areas:-

. Heavy work in factories 13c (55f)

. Light work in factories 16c (61f)

. Hospital wards and shops 18c (64f)

. Offices and dining rooms 20c (68f)

If you do not have a weather policy on extreme weather then the current hot spell presents an opportunity to undertake risk management.

Here are a few things to consider as an employer for addressing excessive temperatures and how they might impact on your staff.

1. Travel disruption

Hot weather should not be a barrier or an excuse for not getting to work.  However as we have recently witnessed journeys on public transport can be affected with services delayed or cancelled.  Train services have had to reduce speeds due to tracks overheating by way of example.  It is also important to have a policy in place so that your staff know what they need to do in the event of delays or cancellations, and who to contact.  Staff should not be penalised if they have made genuine efforts to get to work and the delays and cancellations are confirmed.  Try to be flexible with working hours if it is known that there is going to be travel disruption.  If possible it might be better for staff to work from home if they can be more productive or perhaps they can stagger their hours of work?

2. Annual leave and unexplained absences

It is traditional for staff to book annual leave in the summer months.   The right to take annual leave is a statutory right set out in the Working Time Regulations 1998 and the full time minimum is 20 days and 8 bank holidays per annum.   As an employer you do have the right to refuse a request for annual leave if too many staff want to take the same period of time as holiday.   It is important to treat all requests for annual leave fairly, equally and consistently for example on a first come first served basis.

Hot weather might also make it more difficult to sleep and also there could be a propensity for staff to go to bed later.  This could result in absences from work and/or timekeeping issues.   Employers need to investigate such absences and timekeeping issues to determine whether there are any mitigating factors or if there are grounds to deal with these issues under any disciplinary policy.

3. Drinking alcohol at lunch time.

In hot weather there is an increased desire for some staff to go to the pub and indulge in a cheeky pint or more.    Once again it is recommended that employers have a policy in place dealing with drinking alcohol during working hours and being under the influence of alcohol.

It really does depend on the job and drinking alcohol is always going to be more serious if the work involves handling machinery or driving a vehicle.  In such circumstances drinking alcohol could be tantamount to gross misconduct especially where their health and safety and that of others is compromised.

On the other hand if staff work in an office environment then a pint of beer isn’t going to cause too much of a problem.  However if the consumption is excessive then it can be treated as a disciplinary issue.

It is also important to be aware of any members of staff who suffer from alcoholism and to offer help and assistance as opposed to dismissing them which could expose the employer to the risk of an employment tribunal claim.

Above all be consistent with all members of staff on what is acceptable in terms of consuming alcohol in hot weather and at all.  It most instances it will be a matter of common sense.

4. It’s too hot in the office

Many staff have a tendency to complain that it is too hot to work during a hot weather.  As an employer there is a duty of care to your staff and during hot weather it is easy to take some simple measures to promote good health and safety practices and staff well-being.  You can for example ensure that there is plenty of drinking water, and a fridge to store cold drinks.  Ensure that there is adequate air conditioning and/or fans.    It might also be possible to buy ice-creams for staff which will also boost morale.

Do ensure that the hot weather does not impact on an increase in anger and bad tempers amongst staff and that any concerns about failure to concentrate and tiredness are looking at sympathetically.  There may be special circumstances for some members of staff who suffer from medical conditions that are aggravated by hot weather.

If staff work outside for example on a building site then it is also important to protect them from the hot sun and it is important to limit exposure to sunburn and heat stroke.  It is recommended that staff do not work outside during the hottest parts of the day which generally are perceived to be between 11am and 3pm.  Consider staggering hours or changing them with agreement so that outside workers work earlier and/or later shifts.

5. Dress codes

If the working environment is professional with a strict dress code then it could be worth being lenient during hot weather to provide comfort to staff.    This could include relaxing the rules on wearing a jacket and tie for men, and to allow short sleeved shirts and blouses.   It should be a matter of common sense, whereas flip flops and shorts are not acceptable whereas chinos and a short sleeved shirt would be acceptable.

Hot weather is not unusual in the UK however the prolonged hot spell is.  It is therefore important that employers react sensibly to minimise discomfort in the workplace and to ensure that they have adequate weather related policies in place to deal with the issues set out in this article.

If you need any advice on implementing a weather related or any other policy mentioned in this article then contact Steven Eckett our Head of Employment and Senior Associate.  seckett@meaby.co.uk or contact us on 020 7703 5034.

 

1. Pay day rental arrears

Issue:
Tenant has forgotten to/ fallen behind on paying rent.

Solution:
Encourage you tenant set payment dates on or within a few days of pay day to avoid lack of funds being in their account and thus, defaulting on payments.

Set up a standing order to avoid delayed payments and relying on the tenant to remember to make payment.

2. Cleaning

Issue:
Tenant fails to leave the property in good, clean condition when they vacate the property.

Landlord wants to retain the deposit for cleaning the property, tenant has a difference of opinion … dispute arises.  For the landlord to claim any of the deposit money, the costs have to be justified and evidenced to the deposit scheme holding the deposit, if not agreed with the tenant.

Solution:
If you organised a cleaner before the tenant moved into the property you could provide the details to the tenant so that the tenant can use the cleaner either during the term or before vacating the property.

Write to the tenant before the end of the tenancy to remind them of their obligations and enclose a copy of the check-in report (if applicable) and any photos from when they moved into the property to remind them of the condition to be expected on return (a tip taken from the Tenancy Deposit Scheme).

3. Protect the Deposit

Issue:
You failed to protect the deposit and want to obtain possession of your property but cannot serve notice without returning the deposit.

Solution:
Always protect the deposit! Landlords must put a tenant’s deposit in a government-backed tenancy deposit scheme (TDP) if you rent your home on an assured shorthold tenancy that started after 6 April 2007. In England and Wales a deposit can be registered with:

1. Deposit Protection Service
2. MyDeposits
3. Tenancy Deposit Scheme

There are options for obtaining possession where you have not protected deposit but it is best to seek advice in this scenario/

4. Disrepair/ Damage to the Property

Issue:
A landlord has a duty to maintain the property and it is a tenant’s right.

Boiler broken, leak, damp on the walls, no running water – a headache for any landlord but must be resolved quickly. Failing to address issues promptly can prevent landlords from serving notices requiring possession and can leave them open to disrepair claims from the tenant. Often tenants will also withhold rent until the issue is fixed.

Solution:
Save time panicking and searching for a contractor and have a reliable handyman that you can use on call.

Use an agent – Agencies can also be a easy solution should you want to offload the stress of the problems. Agents will often work with a team of contractors to make sure problems are solved quickly no matter the time of night the tenant calls.

5. Inspection of the Property

Issue:
You are claiming possession of the property and find there is a unauthorised individual or sub tenant in the property; or tenant has made alterations to your property.

Solution:
Regular inspections – not only do they flag maintenance issues, they can also tell you whether there are unauthorised individuals living in the property, that are not listed on the tenancy agreement. Subletting is not usually allowed within residential tenancies, and unchecked tenants could also cause disputes with neighbouring properties e.g. noise. Make sure you adhere to the requirements of notice (found in your AST) before entering the property.

If you have any concerns about any property litigation matter then it is recommended that you contact Aileigh Brough at Meaby&Co for timely advice: abrough@meaby.co.uk or call 0207 703 5034.

What is the problem with Japanese Knotweed?

Japanese knotweed is a plant that can cause serious damage to buildings if left untouched.

It is a weed with roots that can extend up to 3 metres in depth, 7 metres in direction and can grow up at a rate of a yard per week. As a home owner, property developer or potential purchaser, knotweed poses a serious threat to a property; its roots can have a damaging effect on building foundations and drains and the presence of it alone can cause a diminution to the value of the land even.

Lenders are cautious with properties affected by the weed and some lenders will reject a mortgage application if the property is reported to have Japanese Knotweed. Due to the damage the weed can cause, lenders are concerned that a property with or damaged by Japanese knotweed may not be good security for a mortgage as the property is at high risk of damage posed by the plant which can also affect the ability of the property being sold in the future.

In short, you do not you want Japanese Knotweed on or near your property.

What can you do if you have Japanese Knotweed?

If you identify Japanese Knotweed on your property it is important that you try and control it and make sure it does not spread onto your neighbours land. If you struggle to contain or exterminate it you can seek help from professionals who can treat it.

The process is long and can take around 3 years to treat Japanese Knotweed. Therefore if you become aware of the weed it is suggested that you commence treating it immediately.

You do not have to remove Japanese Knotweed from your land but if you fail to stop it from spreading to anyone else’s property you could face prosecution for causing a nuisance to the neighbouring land.

My property has Japanese Knotweed, what liability do I have to my neighbour?

You are not obliged to control, remove or treat Japanese Knotweed on your land. However, you may be liable should the presence of the weed cause the neighbouring property to decease in value and if it spreads on to a neighbouring property.

(1) The spread of Japanese Knotweed onto a neighbour’s land

If the weed spreads onto your neighbour’s land, they can issue proceedings in the Civil Courts for private nuisance, requesting that you remove the weed and pay the costs of removal. Your neighbour may also request the Court award damages for the loss of enjoyment and diminution of value of their land.

A private nuisance is an act or omission which is an interference with, disturbance of or an annoyance to a person in the exercise of his ownership or occupation of land. Nuisance extends to include encroachment on to neighbouring land as in the case of tree roots or overhanging breaches, which cross a boundary.

(2) You can still be liable for the presence of the weed on your land

If the weed is present but has not yet spread on to your neighbours land, you may still be at risk of claim being brought against you.

Japanese knotweed weed may prevent a neighbour mortgaging their property, reduce the value of their property for sale and/or warn off new buyers having an impact and generally reduce the value of the land. The presence of knotweed is sufficient for your neighbour to claim, even if no damage or growth to the property has occurred, for the reduction in the value of their land due to the fact that the weed is in the vicinity of their property and their land is at risk of damage that the plant may cause in the future.

(3) Local Authority action

Be warned- your local authority has (in most cases) the power to serve Notice on an occupier of land containing the weed, requiring them to remedy and/or remove the knotweed. If the occupier fails to adhere to the requirements in the notice can lead to criminal liability.

If you have any concerns about your neighbour, your rights, liability or any property litigation matter then it is recommended that you contact Aileigh Brough at Meaby&Co for timely advice: abrough@meaby.co.uk or call 0207 703 5034.

Acting as executor in an estate can be difficult, especially when grieving beneficiaries wish the matter to be resolved as soon as possible. This can be especially difficult if you are a friend or advisor and are not fully aware of the deceased’s personal affairs which are likely to have been managed by family members.

Meaby&Co can assist you in fulfilling your duties as an executor or administrator (collectively called Personal Representatives) to ensure that things run smoothly and to provide a source of clarity for all involved during a confusing and stressful time. If on the other hand you are a beneficiary and have concerns regarding the conduct of personal representatives, we can advise you of your rights and how best to resolve matters.

The Rights Of Beneficiaries

Although beneficiaries do not have an immediate right to the assets they have inherited, they have the right to bring proceedings if they feel that the estate is not being administered properly. The estate could be complex to administer so cooperation between personal representatives and beneficiaries is vital.

Family & Friends

The beneficiaries will often be the close family and friends of the deceased and may be able to provide helpful information in relation to the deceased’s assets and the whereabouts of any beneficiaries who may have either died, or moved address since the Will was made.

Third Parties

Having someone else in control of the estate can be unsettling for beneficiaries especially when information is not forthcoming . On the other hand, even the most reasonable request from a beneficiary can feel like the straw that broke the camel’s back for an already overburdened personal representative.

 

 

Grant Of Representation

When the grant of representation is obtained, the assets of the estate vest in the personal representatives. It is essential that they are managed properly otherwise the Executor/PR will be held personally liable for any loss to the beneficiaries.

As personal representative, a duty of care is owed to the beneficiaries to exercise reasonable care and skill when administering an estate and a duty is owed to the Court indefinitely unless they are removed from office or the grant is revoked.

Any breach of this duty could result in an action from the beneficiaries. Below are some of the most common actions against the personal representatives of an estate and how they can be avoided.

Types Of Private Client Law Covered By Meaby&Co

 

 

The Probate Process Explained

Slow progress during the administration

Probate is a process which can often take longer than anticipated especially in a complex estate. Delay is often unavoidable and unexpected especially when dealing with so many organisations who each have their own processes.

In very simple cases, probate can take only a few short months but the usual timescale is around 6-9 months, sometimes extending to a year. The personal representatives are not bound by law to distribute the estate to beneficiaries before the passing of 6 months from the date of death and cannot be forced to do so by the Court before the passing of 12 months (the executor’s year).

This can extend to a little longer if it can be shown that there is a good reason for delaying distribution and that the personal representative is acting reasonably and with integrity. PRs should not however hold on to assets needlessly and should administer the estate in good time.

All involved should be  aware of the process to avoid frustrations and regular updates should be given to beneficiaries. Therefore, communication is key.

Beneficiaries should also bear in mind that the personal representatives may have taken steps to protect themselves and the estate from any possible claims and it can be sensible to allow sufficient time to expire to ensure that these protections are fully effective.

Failure to provide accounts or a copy of the Will

It is best practice to inform all beneficiaries of their entitlement under the Will, and it is usually ok to provide them with a copy, especially where this will not give rise to conflict or affect the administration process. Personal representatives must also keep full estate accounts and these should be available to beneficiaries on request.

All residuary beneficiaries of the estate should be provided with a copy of the estate accounts but those inheriting a specific legacy are not entitled to a copy although one may be provided in good faith. Simply knowing where they stand can help calm beneficiaries and reduce friction.

However, anybody with an interest in the estate can make an application to the Court for an account under Section 25(b) of Administration of Estates Act 1925 if a direct request to the PR has been met with refusal.

The preparation of good and thorough accounts and schedules will assist in updating beneficiaries and can help personal representatives keep track of the funds they receive and the changing values of appreciating assets or accruing liabilities.

 

 

Negligence of PR

Beneficiaries can issue court proceedings if they consider that a personal representative is acting negligently. It is sometimes frustrating for beneficiaries, as before the litigation begins, they may find that their rights are not as strong as expected when requesting information or documents.

Court proceedings calling for full disclosure are therefore popular so it is best for the Executor to be forthcoming and transparent with the beneficiaries from the outset to avoid this or to reach a settlement.

Removing an executor/ Stepping down or asking for help

Personal representatives can step down voluntarily if they feel that they are not able to comply with their obligations, or discord between themselves and the beneficiaries will hamper the progress of the administration. It may be better for the personal representative to appoint a professional to continue on with the administration on their behalf as this may release some of the pressure and reassure the beneficiaries.

Alternatively, beneficiaries can apply to the Court to seek removal or substitution of a personal representative. This is not an easy process and the beneficiaries will have to show serious unsuitability, misconduct or incapacity of the personal representative to fulfil his duties.

Contact One Of Our Private Client Solicitors Today

If you would like advice on your rights as a beneficiary or duties as personal representative, please contact Hollie Skipper at hskipper@meaby.co.uk, or feel free to call on 020 3861 5158.

 

ACAS has confirmed that there has been a 39% hike in the number of employment tribunal claims being issued in the last financial year.

It’s annual report reveals that in the last financial year for 2017/18  26,012 cases were filed with the employment tribunal compared to 18,647 for the period 2016/17.

In addition, applications for ACAS Early Conciliation jumped from 1,700 per week to 2,200 immediately after employment tribunal fees were abolished after being declared unlawful last July by the Supreme Court.

ACAS has also confirmed that it has helped to settle around 92% of workplace disputes avoiding employment tribunal proceedings in more than  70% of cases.  This proves that mandatory ACAS Early Conciliation is a useful and effective tool in reducing the number of claims going through the system.

The Ministry of Justice has also confirmed that single employment tribunal claims that have been received have increased by 118% between January and March 2018, although the number of multiple claims fell by 40%.

It was also noted that fees had been returned to 7,700 Claimants totalling some £6.5million.

It is however highly noticeable that the Employment Tribunal service continues to suffer both administrative and judicial under-resourcing leading to a significant number of claims being delayed in being issued combined with many cases being adjourned at short notice.  This clearly is not good for the Claimant’s seeking justice .

We are however pleased to hear that the Judicial Appointments Commission is seeking to appoint 54 new employment judges which we hope will reduce the backlog of claims going through the system.

If you have any employment related enquiries then please contact Steven Eckett, Senior Associate and Head of Employment at Meaby&Co.  seckett@meaby.co.uk