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Employers Warned Not To Ignore ‘Whistleblower’ Concerns

Employment Tribunal Victory For Meaby&Co

The recent Employment Tribunal (“ET”) decision in Dr B Radeljic v University of East London: 3201164/2020, in which Meaby&Co successfully represented the Claimant, illustrates the dangers of an employer refusing to address an employee’s grievances when those amounted to “protected disclosures”.

The factual matrix of the claims was:

The Claimant was a Reader of International Relations at the Respondent from 2008 to 2020. Academically, the status of “Reader” is one below that of “Professor”. In early 2019, he applied for professorship.

The promotion process was characterised by many significant shortcomings on behalf of the Respondent. When the Claimant expressed concern about  those procedural flaws, both in relation to his and other employees’ promotion applications, the Respondent’s officers, apparently due to their knowledge of the veracity of those and their potential to cause embarrassment to it, either tried to avoid addressing the concerns directly, or eventually, when the Claimant persisted in seeking the truth to his concerns, stopped engaging with him, presumably in the hope that he would give up and the complaints would disappear.

The Respondent did not reckon on the Claimant’s tenacity. He submitted a formal grievance detailing those procedural shortcomings, which the Respondent attempted to persuade him to have considered informally. The Respondent employed a number of sham considerations of his promotion application, eventually finding some spurious grounds on which it felt it could reject that. The Claimant appealed those, once again citing the procedural flaws. Again, the Respondent attempted to avoid addressing the allegation of the 2019/20 promotion round’s procedural flaws by focusing solely on the merits of his promotion application, and ignoring his wider concerns.

The Claimant engaged Meaby & Co, who corresponded with the Respondent, laying out his concerns exhaustively in the hope that it would address those. After further months of delay and obfuscation on behalf of the Respondent, the Claimant resigned from the Respondent, stating that its failure to address those concerns, over 9 months after the date he first raised those, was a fundamental breach of his contract of employment which entitled him to claim that he had been constructively dismissed.

The Claimant brought ET claims for:

  1. Constructive unfair dismissal;
  2. Automatic unfair dismissal for making a protected disclosure (“whistleblowing”);
  3. Detriment for making a protected disclosure; and
  4. Wrongful dismissal.

In an unusually conclusive Judgment, the ET agreed with him and upheld all his claims.

Lessons To Be Learned By Employers

While remedy has yet to be determined or agreed between the parties, a number of lessons can be learned by employers faced with allegations from an employee which could be construed as “whistleblowing”. If an employee makes “protected disclosures” (qualifying disclosures in the public interest), an employer should not ignore those. If it does, it could have the following results:

  1. An employee being entitled to claim that by not addressing his complaint, they are entitled to resign and claim that they have been constructively dismissed;
  2. In those circumstances, they are unlikely to have been paid their notice pay, and if not, will be entitled to make a claim for “wrongful dismissal”;
  3. If that is successful, the employee’s restrictive covenants fall away;
  4. The Compensatory cap for a successful “ordinary unfair dismissal” claim is currently £89,493 or 52 weeks’ salary, whichever is the lower. There is no such cap on a successful “automatic unfair dismissal” claim, which is the claim governing an employee’s dismissal for whistleblowing.  Although the ET will make a determination on how much to award a successful Claimant based on the Claimant’s losses, it can substantially exceed the Compensatory cap for ordinary unfair dismissal.
  5. The employer suffers significant reputational damage, both as a result of failing to address the original whistleblowing, and the subsequent negative publicity from the ET’s Judgment. It risks being perceived as an employer which does not value its employees or their views.

 

Meaby&Co have lawyers experienced in representing both claimants and respondents in ET claims, including whistleblowing.  Should you require further information on the above case or advice on its implications, please contact Chris Marshall on 0207 703 5034.

 

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Airspace Development Schemes

Airspace Development Schemes

Since August 2020 freeholders have been able to develop the airspace above the roof of the building without full planning permission under permitted development rules.

This new rule allows up to two additional storeys, where the existing building consists of two or more storeys; or one additional storey, where the existing building consists of one storey.

The initial building must have been constructed between 1st July 1948 or after 28th October 2018. For the most part and for comfort, prior approval will be sought first.

Freeholders (which we shall describe as the building owners in this note as that description could include a leaseholder with a pre-existing interest in the rooftop) with appropriate buildings ripe for such development will want to consider how they can maximise the value in their rooftop. If they feel bold or have prior experience then they might look to build the extra storeys themselves.

If not, they will look to other options.

The easiest and cleanest method is to sell their interest to a third party who does have the relevant expertise and financial backing to build the extra storeys. However, this may mean selling the reversion to pre-existing tenancies which will mean a loss of the ground rent income. The benefit of this route is that the building owner does not have to police the development and mediate between a new rooftop leaseholder and the existing leaseholders who may not welcome development. A sale of the building owner’s interest might either mean selling their property or, if the property is held by a company, selling the shares in that company.

Alternatively, rooftop and airspace leases are becoming more common. Coupled with other necessary rights such as licences to alter and scaffolding rights, a grant of a lease to a developer creates a leaseholder of that developer and grants the ability for the developer to build on the rooftop.

An alternative is that the building owner might seek to grant a developer rights to build the extra storeys. If this method is used then thought will have to be given as to how the developer will receive the financial benefit of having done so. One option is securing a joint venture agreement prior to the development in which the building owner and the developer agree what will happen with the additional storeys once constructed and how the profits will be split. Alternatively, the building owner and developer might consider a promotion agreement directing that the dwellings created by the additional storeys are marketed, sold and the profits dealt with in accordance with that agreement. Ultimately, if the developer has no proprietary interest in the rooftop, it will have to be the building owner that grants any leases to the end user.

Such a variety of options creates opportunity for the contracting parties to decide how to structure the deal financially. A developer might pay the building owner for the deal in advance of construction or sale or, alternatively, the building owner may defer payment by agreeing to be paid out of the sale proceeds.

If you have any questions on how to structure a rooftop development deal, please contact Meaby & Co at nc@meaby.co.uk or on 020 7703 5034.

We also have a website dedicated to this area of law: Rooftop Law

airspace legal firm
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The Impact of the Landlord and Tenant Act 1987 on Rooftop Development

The Impact of the Landlord and Tenant Act 1987 in the context of Rooftop Development

The Landlord and Tenant Act 1987 requires a landlord, in the event that they decide to sell to their interest on the open market, to offer it to the existing leaseholders before any sale to a third party.

Ownership of the freehold by residential leaseholders can be a good thing, of course. But if the leaseholders do not want to or cannot buy their freehold then this can cause delays in commercial sales.

The existing leaseholders’ right of first refusal applies provided that there are two more residential flats in the landlord’s building held by qualifying leaseholders and, of those flats, that they constitute more than 50% of the flats so contained. However, this obligation does not apply if the total extent of the commercial part of the building is more than 50% of the internal floor area.

The non-residential status of parts of the building might include an intention to convert from residential to non-residential in the future and this may be a way to circumvent the right of first refusal procedure although this would probably take longer than the right of first refusal process as only two months need to expire from receipt of those notices.

There are various exempt landlords but these are unlikely to be private landlords as exemption includes bodies such as housing trusts.

Avoidance techniques include putting a head lease in between the freehold and the leases of the residential long leaseholders but this requires advance planning. It is worth bearing in mind that the permitted development rights for rooftop extensions apply to buildings constructed between 1948 and 2018. Given that any existing residential flats are likely to have already been sold, unless thought was given before the sales of the residential flats to qualifying leaseholders then it is likely that the right of first refusal process will need to be followed as earlier blocks are unlikely to have a head lease in place to take advantage of this loophole.

Other exemptions include disposals by way of a gift to members of the landlord’s family. So, for example, if it is proposed that there is to be a lease of the rooftop and airspace and the reversionary interest is owned by a private individual than that private individual might grant a lease to a family member and that family member might assign it to the proposed developer.

Another loophole is the grant of a rooftop/airspace lease to an associated company of landlord. This is similar to a transfer to a family member before selling on to the third-party. However, both this and the grant of a head lease that require advance contemplation of the sale of the landlord’s interest.

We are aware that sometimes landlords set up associated companies years prior to any sale to satisfy the requirement that the company must have been an associated company of the landlord for a period of two years.

Alternatively, if a company, a landlord might consider selling the shares in the company but this would only work in practice if that company only held that one asset (unless a portfolio sale is intended).

Some might feel that if the tenants accept the offer made by the landlord under the right of first refusal process then does it really matter who they sell to? However, most rooftop and airspace leases (and this is the type of transaction envisaged by this note) would be far too complicated and expensive for the existing leaseholders to consider taking it up. Very few residential leaseholders fancy themselves as developers (although never say never and we saw one instance of this in 2021). Generally speaking and in reality: not many residential leaseholder would want to pay the sort of premium that a developer would pay to the landlord to thwart that development.

 

If you have any questions on right of first refusal, please contact Meaby & Co at nc@meaby.co.uk or on 020 7703 5034.

Sanjay Shah Law Firm
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Meaby & Co’s Head of Litigation, Chris Waters leads the defence for the Sanjay Shah Defendants in top 20 legal case in 2021

The Lawyer has now released its list of the top 20 cases of 2021.

In fifth place is Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP and others which involves an allegation of a £1.9 billion tax reclaim fraud.

Meaby&Co is defending 27 Defendants including the lead Defendants in this High Court claim, the trial of which is expected to last an entire judicial year.

The Lawyer magazine collates its top 20 legal UK cases each year. The list is compiled on a combination of factors, including the value of the case, its complexity and its public importance.

Partner and Head of Litigation, Chris Waters, said: ‘The Lawyer’s recognition of this case as a top 20 case in 2021 affirms the size and scale of this litigation is such that it is particularly noteworthy”

‘As a boutique law firm we offer the highest level of service for our clients and this case is testament, once more, to the fact that clients involved in large, complex cases which are multi-jurisdictional can be very well represented by smaller, boutique firms.’

‘In the past five years, our litigation team has expanded significantly and we continue to build a reputation for representing clients in some of the most complex, worldwide proceedings”

If you have any queries regarding litigation do not hesitate to call us on 0207 703 5034 or email us at info@meaby.co.uk.

 

Employing Interns
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What Legal Steps Do I Need To Take When Employing Interns?

Legal Advice For Employing Interns.

Steven Eckett, Partner and Head of Employment Law at Meaby&Co Solicitors has produced a five step check list for employers to help protect interns from harassment.

This check list aims to create best practice for employers to ensure interns can work in a safe environment and to give legal protections to employers.

Mr Eckett said: ‘Too often interns (some of whom are for the first time venturing into the workplace) are treated differently to other employees and their employment rights are overlooked or not taken as seriously.

‘This can not only be detrimental to the intern but can place the employer in a vulnerable legal position that can leave them open to potential litigation.

‘A few updates to existing HR policies and some extra induction steps offers both the interns and employers vital protection.

‘It’s really important that firms don’t make the mistake of treating interns like second class citizens when it comes to employment rights.’

Five Steps Employers Should Take When Hiring Interns.

  1. HR should adopt appropriate training specifically for staff members who will be managing or working alongside interns prior to the intern commencing the internship. 
  2. Employers needs to ensure that they have an anti-retaliation policy in place which protects an intern who has reported harassment from being retaliated against from other employees in the organisation. 
  3. Anti-harassment and anti-bullying policies should be accessible to interns from the outset of their internship usually in a staff handbook. It should be clear what actions an intern should take when they experience, see, or find out about harassment. 
  4. HR teams may also consider ensuring there are multiple ways to report harassment by an intern. An intern may wish to report in confidence or bypass specific individuals, especially those who are the cause of the harassment therefore, allowing multiple and flexible ways to report an issue may assist in doing this. It should also be open to an intern to raise a formal grievance. Alternatively, the employer can decide to treat a complaint as a grievance. 
  5. An effective induction programme for interns to allow them to understand how and to whom they should report any harassment related matters should be implemented.

 

The highly respected Human Resources Journal, HR Grapevine, recently interviewed Mr Eckett for his expert legal opinion on hiring interns. The full article can be read here: https://www.hrgrapevine.com/content/article/2020-07-28-how-can-hr-protect-interns

If you have an employment query please do not hesitate to contact us. We can give a free, no-obligation quote and advise you how best we can help you.

Contact us on 0207 7035034 or email us at info@meaby.co.uk.

Click here to view all of our Employment Legal Services.

Lawyer For Second Home
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Second Home Buyers’ Boost

If you have any conveyancing queries relating to buying a second home please do not hesitate to contact us for a free, no-obligation chat on 0207 703 5034  or fill out our contact form and we will come back to you.  We are happy to answer your questions and advise how we may be able to help.

Our Head Of Property, Partner Chris Sarsfield, was quoted in the Sunday Times newspaper on the subject of how the Stamp Duty holiday would affect second home buyers. 

Chancellor Rishi Sunak’s decision to raise the Stamp Duty threshold to £500,000 until the end of March 2021 has proved to be an unexpected boost for second home buyers.

Although second home buyers will still be charged a 3 per cent surcharge on the total cost of their property it still creates significant savings.

For example, someone buying a second home for £500,000 during the Stamp Duty holiday will now pay £15,000 rather than £30,000.

Mr Sarsfield helped the Sunday Times produce an article explaining how the new working from home mentality caused by lockdown combined with the Stamp Duty holiday was creating large demands for second homes.

He commented: ‘Once working-from-home patterns had been established and it became apparent that this new flexible way of working was going to continue after lockdown finishes there was a  significant upsurge in people wanting properties outside of London, and particularly by the coast.

‘This second home trend is inevitably going to be turbo-charged by the chancellor’s stamp duty holiday. Until recently we’d seen a large drop in purchases of second homes after the stamp duty surcharge was introduced but I think people will take real advantage of this window. Suddenly someone buying a second home for £500,000 is having to pay £15,000 rather than £30,000 in stamp duty which is clearly a significant saving.

‘People have realised that they can work from home by the sea and perhaps only have to commute into London once a week. It suddenly doesn’t matter that a second home is a couple of hours from the office. It means they can get proper use of the home, particularly in the holidays when the children aren’t at school.

‘The stamp duty holiday has also been a real boost for those wanting to purchase holiday lets because it makes it more affordable and more likely that the numbers will add up to allow them to afford a buy-to-let mortgage.’

If you have any queries relating to conveyancing around second homes please do not hesitate to contact us for a free, no-obligation chat on 0207 703 5034  or fill out our contact form and we will come back to you.  

We are delighted to welcome Joanna Toloczko to the Meaby Family

Joanna is a Senior Associate with over thirty years’ experience of Family and Divorce Law, in leading law firms in London and Essex.

Joanna understands that the breakdown of a relationship is one of the toughest experiences a person will ever have to deal with. She aims to provide her clients with the support they need to approach their situation with clarity, confidence and dignity. She helps her clients to focus on the future by approaching the negotiations in a constructive and non-confrontational way. If there are children, their best interests are paramount. Joanna can help you whether you are married, in a civil partnership or living together.

She can offer assistance in connection with all Family Law matters but has a particular interest in complex and high value financial applications within divorce proceedings, such as cases involving a family business or complex trust arrangements.

Joanna is a member of Resolution and the Law Society’s Family Law Panel. She is also an accredited mediator under the Law Society’s Family Mediation Scheme and is described in the Legal 500 as “experienced, efficient and caring”.

You can contact Joanna via email: jtoloczko@meaby.co.uk or call us on 020 7703 5034

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Airspace Developments

Visit our dedicated Rooftop Law website to find out more how our legal team can help you.

You’ve all seen the advertisements:  “Amazing development rooftop development opportunity” These offer a great chance for development where there is little available land on the ground but there is a lot to consider when considering taking a lease to add floors to an existing development and the devil is in the detail.

Rights under the existing leases: You must consider whether the existing long leases in the building contain rights of access on to the roof at the time of original grant and whether your proposed redevelopment would infringe those rights. You don’t want disgruntled tenants in the building arguing that your new levels constitute a derogation of grant.

Right of first refusal – In  certain circumstances a disposal by a landlord of a roof space will be deemed a relevant disposal under the right of first refusal provisions of the Landlord and Tenant Act 1987 (Check out the decision in Dartmouth Court Blackheath Ltd v Berisworth Ltd [2008] EWHC 350). Before taking on a lease of a roof space notices may need to be served on the tenants in the building to offer them to take up the right to buy the roof space themselves. We often find that tenants can be motivated to accept this opportunity – even if they have no development aspirations themselves, they may wish to thwart development going on above their heads.

Nuisance clauses – Many leases contain provisions restricting the tenant from using premises “in a manner that would cause loss, damage, injury, nuisance or inconvenience to the Landlord, its other tenants or any other owner or occupier of neighbouring property” and freeholders will likely be obliged under the terms of the existing leases to take action where there has been a complaint by one of the existing tenants.

Substantially the same form – many residential leases that we read contain covenants obliging the landlord to grant leases in the building in substantially the same form. Can you be sure that the freeholder is able to grant the lease of the air space in the form that you may need to carry out the development?

Service charge adjustments – if the service charge proportions are set out in fixed percentages in the lease, which tends to be more of a feature in older style leases, will the grant of your lease affect the service charge proportions in the building?

Will you have the rights to construct additional floors? Have the existing residential leases reserved the right to develop the landlord’s building as the landlord thinks fit? How will you reach the upper parts? Are there rights to construct scaffolding outside the windows of the existing tenants? Read our related blog on A Tenant’s Quiet Enjoyment vs a Landlord’s Right to Develop. A comment upon Timothy Taylor Ltd v Mayfair House Corporation and Another  [2016] EWHC 1075 (CH) HERE:  https://www.meaby.co.uk/quiet-enjoyment-vs-noisy-development-tenants-rights

These are just some of the few considerations.

Contact Nicky Cleightonhills on ncleightonhills@meaby.co.uk for development matters.