Category: Latest News

The date of the funeral of Her Majesty Queen Elizabeth II has been confirmed as the 19^th September 2022.  A national bank holiday has been set for this date for the UK.  This invariably raises a number of concerns for businesses. 

Yesterday, the Law Society issued new guidance on the impact of the bank holiday for property completions scheduled for Monday. The guidance covers what conveyancers can do if their clients are contractually bound to complete on the 19^th September, as well as recording changed dates and amendments to the contract.

The government have also issued some guidance on the additional bank holiday, which explains that leave arrangements are open to discussions between employers and employees.   The unexpected passing of the Queen has inevitably created difficulties for employers when considering the potential closure of their business for the day, within such a short time frame.

The contract of employment should however be the starting point for these discussions as some contracts specifically allow all bank holidays whilst others specifically exclude them.  Employers are however encouraged to acknowledge that this can be a sensitive time for many individuals.  

School closures on the 19^th of September are also likely to cause employees to encounter difficulties with arranging childcare.  This will also be a factor in helping determine what employers should do in this situation.

Those not working on the day of the funeral, for example, part-time employees, those on long-term sickness or maternity, adoption or shared parental leave, should have the additional day recognised.

Employers have the option of requiring employees to take the day out of their remaining annual leave entitlement. The government guidance makes clear that employers “may include bank holidays as part of a worker’s leave entitlement” and contracts may allow employers to do this.  The short notice period however may prove problematic for some, as would situations when employees have already used their full entitlement.  In any event, it would be wise to communicate as soon as possible with employees and make clear if the day is to be deducted from existing entitlements.

The UK is currently grieving the death of Queen Elizabeth II, the country’s longest-serving monarch. 

The Queen has ruled for longer than any other Monarch in British history, only recently celebrating her 70 years on the throne.   In that time, she has become a much loved and respected figure across the world.  Her extraordinary reign has seen her travel more widely than any other monarch, undertaking many historic overseas visits.

Her son King Charles III said the death of his beloved mother was a “moment of great sadness” for him and his family and that her loss would be “deeply felt” around the world.

Known for her sense of duty and tireless work ethic, she has been an important figurehead for the UK and the Commonwealth during times of enormous change. The Queen has played a constitutional role in opening and dissolving Parliament and approving Bills before they become law.  This is known as royal assent and all legislation (once the Bill has passed the various stages in the Parliamentary houses) must be granted royal asset before it can become an Act of Parliament.

As Head of State, Her Majesty the Queen has remained in a strictly neutral position with respect to all matters political, being unable to vote or stand for election. However, the Queen did hold a key position in our nation, which was to fulfil the important and formal ceremonial roles in relation to the Government of the United Kingdom.

Throughout her reign, the Queen has granted royal assent to somewhere in the region of 3,000 Bills of the UK Parliament (and many more when you take into account those of the Scottish, N. Irish and Welsh Parliaments).   These have ranged from the more historical Acts which have shaped our country to those which govern the more day to day and social matters.  They include legislation covering devolution to Scotland, Wales and Northern Ireland and Brexit to animal welfare and human rights.   One of the most notable was the abolishing of the death penalty which was granted royal assent by Queen Elizabeth on the 8th November 1965.   LGBTQ+ rights and women’s rights have also developed hugely over the last 70 years also.  In 1967, both abortion and homosexuality were legalised in the U.K.  Decades later, the Queen signed the royal assent to decree legalising same-gender marriage.   Prime Ministers of every age have commented on the Queen’s acute grasp of legislation and the finer points of each and every Bill before her and there is no doubt she has watched with great interest the changing face of her nation.

For solicitors, the immediate change means we are no longer Officers of Her Majesties Court Service this will now immediately be known instead His Majesties Court Service and the Queens Counsel (“QC”) barristers will now, for the first time in over 70 years, become known as Kings Counsel (KC).

The City of London Law Society said: “We are deeply saddened to learn of the passing of Her Majesty Queen Elizabeth II. Her loss will be felt around the world. We convey our heartfelt condolences to the Royal Family at this difficult time.”

Here’s to an end of an era and thank you for your service Ma’am.

Liz Truss has been announced as the new leader of the Conservative Party. As prime minister, she will have an opportunity to change the government’s approach to the rule of law and deal with the current crisis in the justice system.

Ever since entering Parliament in 2010, Truss has rapidly climbed the political ladder and has held several cabinet positions under previous leaders including as foreign secretary.

“I am confident that together we can ride out the storm. We can rebuild our economy, and we can become the modern brilliant Britain that I know we can be,” the 47-year-old former foreign secretary said outside her new Downing Street home and office.

The new cabinet will be charged with delivering on Truss’ three stated priorities: tax cuts to boost the economy, help over rising energy costs, and the long-standing problem of the state-run NHS. 

Undoubtedly, she inherits an economy in crisis, with price increases at double digits and the Bank of England warning of a lengthy recession by the end of this year.  Already, workers across a variety of sectors have gone on strike and this shows no sign of abating.

Our criminal justice system is however also facing a make-or-break moment with huge backlogs in the courts postponing justice for victims and defendants.  Chronic underfunding is forcing lawyers to leave this area of work in droves and leading to the collapse of our vital network of duty solicitor schemes.   Of immediate importance is the plight of barristers who are currently on strike over pay.   There are ever-growing calls on the PM to immediately implement the minimum 15% criminal legal aid rate increase advised by Lord Bellamy to ensure the wheels of justice keep turning.

Undeniably, investment needs to be made across the entire justice system, including on court buildings, to ensure timely access to justice is available to all.

Truss has also made a pledge to scrap plans to raise corporation tax on big firms, and to reverse an increase in a payroll tax on workers and employers, intended to raise additional funding for health and social care, with the extra spending coming from general taxation instead.

Only time will tell if our new PM can keep her promises and, as she has promised “get Britain working again…”.

In the Supreme Court case of Harpur Trust v Brazel (2022) UKSC 21, an important appeal
was raised on the issue of statutory leave requirements for part-year workers. To clarify
part-year employees are those with ongoing contracts who work a variety of hours only
during certain weeks of the year.

The facts were that Mrs Brazel, a music teacher at a school, run by the Harpur Trust, was
employed on a permanent contract but for term times only. Mrs Brazel was accepted as a
worker by Harpur Trust, and as such, she was entitled to 5.6 weeks of paid annual leave per
year, provided she took her annual leave during the school holidays, when she was not
required to teach. However, Harpur Trust argued that to account for the weeks not worked,
a part-year employees holiday entitlement needed to be further pro-rated. This was the
reasoning behind Harpur Trust changing its way of calculating her holiday pay to the
percentage method of calculating her pay according to 12.07 of her usual pay. The new
calculation meant that Mrs Brazel was essentially being paid less than she had previously
received.

The Supreme Court rejected the trust’s claims and confirmed that part-year employees,
regardless of their working hours and regardless of the proportion of each year they work,
are fully entitled to the 5.6 weeks of vacation time. Additionally, their holiday pay must be
based on the calendar week method of averaging a week’s working hours. Since there was
no provision in the Working Time Regulation of 1998 allowing for pro-rated holiday
entitlement for part-year employees.

The Supreme Court acknowledged that this approach favoured workers who work unusual
hours, but it does not result in an irrational outcome that necessitates a complete overhaul
of the legal framework. Furthermore, the Supreme Court found several flaws in the Harpur
Trust’s proposed methods of pro-rating a part-time worker, which would have necessitated
complicated calculations, requiring all employers to keep detailed records of every hour
worked, even if they are not paid on an hourly basis.

Thus, the decision only impacts workers engaged in permanent part-year contracts.
Particularly the education sector, where many individuals work term time only, e.g.,
teachers with irregular hours or those in the education sectors. As a result of this Supreme
Court ruling, potentially employers could face claims of unlawful deduction from wages,
which could go back up to two years.

It should be noted that the average casual worker on a zero-hour contract will be
unaffected, as they will only be entitled to paid vacation based on the number of weeks
worked. Moreover, part-time employees who work 52 weeks a year but for fewer hours or
days than full-time employees can also have their vacation calculated pro rata. Furthermore,
it does not affect fixed-term employees, whose holidays will continue to be calculated pro-
rata for the duration of the contract.

Well done to our team who took part in the London Legal Walk yesterday to raise much needed funds for free legal services.  Access to such legal services is crucial right now with more people hitting the poverty line so our team where only too happy to do all they could to raise much needed funds.

The weather held out beautifully and the event was back to pre-pandemic proportions making it even more enjoyable for all.  Our team walked from The Law Society building in London, down the embankment, past St James’ park and the palace and through Hyde Park and back round again taking in some beautiful sights.  A much needed drink was had at the street party afterwards.

Donations are still being accepted and would be gratefully received on;

https://londonlegalsupporttrust.enthuse.com/pf/aston-bond
Here’s to next years’ event!

 

With a week (if not more!) of travel disruption looming; tube strikes, train strikes, and even delays on flights over the summer period, these will all affect employers and employees alike.  But what can employers do in these situations?

 

The starting point for all parties concerned is discussing and being upfront about the potential problems each can foresee due to the upcoming disruptions.  Employers will need to ensure the business is able to continue but must accept problems will inevitably arise.  These can be planned for in advance by considering alternatives.  Working from Home is an obvious example for those that are able and whose business permits, but many businesses are unable to accommodate that.  Altering shift patterns during strikes or even pre-booking taxis or a hotel nearby for certain members of staff may be other options to consider.

 

Employers would also have the option to enforce annual leave for employees who will be unable to attend work.  However, employers should bear in mind this will be an unpopular option, albeit perfectly legal.

 

There are no specific legal requirements governing what businesses must do in these situations – the onus is in fact on the employee to get to work.  If an employee does not show up for work, it is classed as an unauthorised absence and an employee will not be entitled to be paid.  However, disciplining an employee for failure to attend when the situation is out of their control is also likely to be considered unreasonable.

 

Ideally, employers should have a policy in place for dealing with travel disruptions. Such a travel policy would cover when employees will/will not be paid so that expectations can be managed, the steps you expect them to take in such situations (i.e. making clear annual leave may be enforced) and can provide other options to be considered.  A travel policy is highly likely to reduce the risk of disputes arising between employers and employees however, so is always advisable – especially when such strikes look set to continue over a prolonged period.

 

For any assistance with this or other employment law matters, please contact out Head of Employment, Ilinca Mardarescu.

Elon Musk recently made headlines yet again in relation to a potential $44bn deal to take Twitter private. As part of this, he has plans to remove what he sees as limits to free speech on the platform.

 

Should the deal go through, and should Musk stick to his plans to scale back Twitter’s moderation policies, he will be set on a collision course with the EU, who recently introduced new laws requiring big tech companies to take a more active stance on tackling hate speech, misinformation, and illegal activities on their platforms. The penalty for not complying with these new, tougher rules is a substantial fine going up to 20% of global annual turnover for repeat offences.

 

With Musk describing himself as a ‘free speech absolutist’, and the EU taking the stance that free speech, and democracy in general, work better when aggression and misinformation are more tightly regulated, there is a large legal and ideological dispute brewing. In the case of Musk, Twitter and the EU, it is likely to hinge around the limits of free speech and the protection of users. The results of this, if and when it happens, will have a significant impact on how digital regulations of this kind are rolled out around the world, and on how we interact with each other in this digital world.

 

However, this issue of free speech is only one of a number of legal challenges that the EU is bound to face in the wake of their new legislation. To find out more about these new laws coming into force and how they may affect you, take a look here.

Last week, the European Union passed two new laws to regulate big tech companies: the Digital Markets Act and the Digital Services Act. This new legislation represent arguably the biggest set of changes to the online world since the GDPR laws.

 

Fortunately, unlike the GDPR changes, these do not require substantial efforts from all businesses in the way they operate.  Crucially, the Acts are only directly relevant to companies whose main services are provided online.  Additionally, small tech companies will be spared the costliest of obligations, with only the largest companies (with a user base of at least 45 million across Europe) having to deal with the toughest regulations. These companies are identified in the Digital Markets Act as ‘Gatekeepers’, which often have interlocking services that work together to prevent users from branching out to other potential service providers, and which are capable of easily crushing smaller competitors in the marketplace. Think the likes of Amazon, Apple, Google and Meta.

 

At this point you might be thinking, “Ok that’s great, but why does it affect me? We’re no longer in the EU”. That is correct, and big tech companies are not going to start applying the rules to themselves voluntarily outside the EU.  However, it is likely that similar laws will be passed in a number of countries around the world following the example of Europe. This is what happened in many cases following GDPR. At this stage, it is impossible to know exactly what form a UK version of the new legislation may take, or when it will go through parliament, but it is likely to be similar to the EU version.

 

So, what do we have to look forward to?

 

For starters, the measures promise a safer and more pleasant experience for users; making it easier to report misinformation or dishonest products being sold online. They also make it easier to use services from other providers which may provide users with better value or a better experience. This includes being able to uninstall pre-installed software or apps on devices should they wish to.

 

For businesses, the main benefits are going to be felt by small enterprises and start-ups, as they are exempt from costs and are protected from unfair anti-competitive practices. They also benefit from the legal certainty of how Gatekeeper companies will interact with them and the terms on which they can make use of their services. This means that a business that allows users to do something as simple as creating a login using Google or Facebook could stand to benefit from the Acts.  Another benefit is the proposed system which will allow businesses to flag illegal content and goods that affect their rights, including their intellectual property.

 

Clearly, there will be a cost to all this. But it is one that is effectively borne by some of the largest and wealthiest companies in the world. In exchange, we get a system that will theoretically promote innovation, user choice, and fairer business practices. As for whether the Digital Market Act and Digital Services Act live up to these ambitions or not remains to be seen.  Undoubtedly however, the Gatekeeper companies most affected by these regulations will not simply accept these changes quietly.  We can anticipate years of litigation between them and the EU which will test to see how far the regulations can be pushed, the results of which will undoubtedly shape future legislation in this sector all over the world.

Since last week, P&O Ferries has been all over the headlines for seemingly all the wrong reasons. Their mass sacking of 800 staff without following the correct procedure of going through a proper consultation period, with the intention of hiring cheaper, non-UK workers instead, was met with outrage at the blatant breach of UK law.  Yet they seem set to get away with it, as government ministers and newspapers condemn the actions while simultaneously acknowledging that it seems there is little they can do.  In return, the ferry company has substantially reduced its operating costs in a matter of days, potentially saving the business many thousands of pounds.

This is not luck.

Thorough and detailed legal advice would have been sought, and a quick and comparatively cheap solution provided. This solution drew on the fact that substantial parts of the company operated in international waters or were registered overseas, minimising the influence of UK employment laws. The suddenness of the move also meant that no union action could take place to delay or draw out the process, again keeping costs down. The settlement packages offered to the employees have also proved effective, as they are reasonably generous, and the vast majority of the workers have accepted them, seeing settling as preferable to a protracted legal challenge which could leave them with nothing.

This style of approach clearly has potential advantages for companies needing to cut costs quickly, but it is undoubtedly also a high-stakes gamble. One which P&O Ferries may yet lose.

Public relations and brand image form a significant part of the worth of a company. They have a value, albeit one that is hard to quantify, and they contribute significantly to the success and failure of a company.

The public outcry against P&O Ferries has been huge, and while the company’s move has increased their money-making potential in the short term, they may well have paid for this in the long-term by sacrificing their public image. Only time will tell.

P&O Ferries may have flown too close to the sun with their dismissals. However, it is possible that had this been done on a smaller scale and attracted less public attention, it may well have flown completely under the radar, leaving the company’s brand unscathed and with a healthier bottom line.

The brazenness of their move has rightly prompted calls for a review of employment laws. As we have seen, this area is already a potential minefield for employers and employees alike, and may well change soon in light of recent events. Expert and up-to-date legal advice is therefore crucial for knowing your rights and making sound business decisions.