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Legal updates

25 September 2011 Commercial property

Legislation protects residential tenants from excessive service charges. Before entering into contracts to provide services or carry out works relating to residential properties, you should consider whether you need to consult with your tenants. If you fail to consult when required, you will only be able to recoup the statutory maximum, unless you receive dispensation from the Leasehold Valuation Tribunal (LVT). What is a service charge? A service charge is an amount payable by your tenant as part of or in addition to their rent. Service charges may vary according to the costs or estimated costs incurred in connection with the matters for which the service charge is payable. Service charges must be reasonable You can request that your tenant pays you a service charge for costs you incur for: Services Repairs…
09 September 2011 Employment advice

When a business wants to make a change to the terms and conditions of its employees, it often goes through a process of consultation, seeking agreement to the changes. If, after the consultation period, all or some of the employees do not agree to the proposed changes, the business may be able to dismiss these employees fairly for some other substantial reason (SOSR), offering employment on new terms and conditions. In a recent case, a company asked its employees to take a 5% pay cut after a fall in the company's sales and profits. Following a company-wide consultation, only two employees refused to agree to the change. The company terminated their employment and offered new terms and conditions on the reduced pay. The Employment Appeal Tribunal held that the dismissal was fair for SOSR. The…
07 September 2011 Employment advice

A settlement agreement is the formal name given to a termination agreement between an employer and an employee. Although marked "Without Prejudice" (ie off the record), once signed the agreement becomes binding upon you and your employer. The effect of you signing a settlement agreement is that in exchange for a termination payment and any other benefits which your employer agrees to give you, you will be giving up most, if not all, of your employment-related legal rights. This means that once you have signed the agreement, you will not be able to bring any claim in respect of your employment or its termination in an Employment Tribunal, County Court or High Court. For example, you cannot bring an unfair or wrongful dismissal claim, any form of discrimination claim, any breach of contract claim or claim for…
06 September 2011 Residential property

This checklist explains what a tenancy deposit scheme (TDS) is and what a landlord's obligations are under a TDS. What is a TDS? A landlord under an assured shorthold tenancy (AST) must protect a tenant's deposit by using an authorised tenancy deposit scheme (TDS) operated by an approved scheme administrator. A TDS has two main objectives: To ensure that, when a tenant pays a deposit, it will be protected and returned to the tenant at the end of the AST, except when the landlord has a legitimate claim on it. To resolve disputes between landlords and tenants using dispute resolution rather than via the courts. There are two types of TDS: There are two types of TDS: A custodial TDS requires a landlord to pay its tenant's deposit to a…
06 September 2011 Employment advice

More than 1.3 million workers have lost their jobs during this recession and there are substantial public sector job cuts to come. Even if you do not face redundancy, it is likely that you know someone who will. It therefore pays to know your rights. If you have more than one year's employment, you may be able to claim unfair dismissal if the redundancy was not genuine or your employer did not follow the correct procedure. You have to move quickly though - you only have three months from the date your employment ends to start a claim. In following the correct procedure, your employer has to consult with you individually in a series of meetings. This gives you a chance to come up with suggestions for avoiding your redundancy, consider any other jobs your…
03 September 2011 Employment advice

A Restrictive Covenant is a contractual term restricting an employee's activities after termination but is void for being in restraint of trade and contrary to public policy unless the employer can show that: It has a legitimate proprietary interest that it is appropriate to protect. The protection sought is no more than is reasonable having regard to the interests of the parties and the public interest. General An employer cannot impose a covenant merely to stop someone competing, but it can seek to stop that person using or damaging something which legitimately belongs to it. This type of restriction is to be distinguished from the duty of confidentiality that an employee owes to an employer. The duty of confidentiality is founded in common law and does not require an express restraint to be…
02 September 2011 Residential property

Slowly but surely, we are seeing signs of increased activity in the housing market, as are fellow professionals in local estate agencies. Another sign of optimism locally is that City of York Council has recently given the green light to a 20-year development plan which includes a target 800 new homes per year, which would play a vital role in renewing supply for first-time buyers in the city. Without doubt, there is a great deal of frustration amongst many people seeking to get onto or move up the housing ladder. However, if you have been wondering when to put your house on the market, now may well be that time. You no longer need a home information pack, following their abolition last year, but you will need to commission an Energy Performance Certificate and produce…
02 September 2011 Employment advice

According to the Health & Safety Executive (HSE), over 400,000 employees suffer stress, depression or anxiety caused or made worse by their current or past work.  Over 13 million working days are lost each year as a result of stress. In addition to loss of productivity, employers need to take care not to put themselves at risk of a claim from an employee, resulting in both financial penalties and potential loss of reputation.  O2 was ordered to pay nearly £110,000 in damages to an accountant who suffered ill health, having requested assistance on a number of occasions. Through taking a positive approach to tackling work related stress your business also stands to benefit from improved morale amongst staff and reduced cost of absences, sickness cover and recruitment. Stress is defined as: 'the adverse reaction people…
11 August 2011 Commercial property

A Court of Appeal decision highlights the risks for commercial tenants of failing to correctly exercise the break clause in their lease. In this case, the tenant failed to give vacant possession in accordance with the terms of the break clause in its lease. The tenant wanted to carry out repairs to the property to control costs and avoid a dilapidations claim for damages in excess of its own costs in doing the repairs. There was no obligation on the tenants to complete the works before vacating the property; they were only required to pay rent up to the break date and give vacant possession. By deciding to stay in the property to complete the repairs, the tenant failed to provide vacant possession and was, therefore, not entitled to terminate its lease. Fortunately, the tenant…
08 August 2011 Employment advice

New laws protecting agency workers come into force on 1 October 2011. For example, from the start of their assignment, agency workers will be entitled to access any collective facilities and amenities that other employees or workers within a business have access to (such as child-care facilities). Who is an agency worker? An agency worker is any individual who: Is supplied by a temporary work agency (TWA) to work temporarily for and under the supervision and direction of your business; and Has a contract with the TWA, which is either: a contract of employment with the TWA; or any other contract to perform work and services personally for the TWA. A TWA is an employment business that supplies workers to hirers for temporary work (as opposed to an employment…
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