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Posts for June 2009
Tea breaks are good for you
June 30, 2009
Apparently drinking tea is actually better for you than drinking water. See this story on the BBC website:
http://news.bbc.co.uk/1/hi/health/5281046.stm
Do you have policies in place to ensure your workers receive the statutory minimum rest breaks? Are you safeguarding your worker’s health by giving them access to the health-giving benefits of tea? By law, all workers are entitled to regular breaks in the working day – a minimum of 20 minutes for every shift lasting over six hours for workers aged 18 or over.
Those aged 16 – 17 should have at least 30 minutes break if they work more than four and a half hours. And you must take into account the time worked in total when calculating this, if they also work for another employer. There are some exceptions to these rules, for example during emergencies or busy periods when breaks can be accumulated and taken later. Sadly, as yet, the Working Time Regulations don’t stipulate what sort of beverage employees should consume during their break.
Health and safety guidance to be free online
June 30, 2009
Businesses will soon have free access to authoritative guidance about how to protect employees from workplace dangers.
From September 2009, the Health and Safety Executive (HSE) will make around 250 priced publications containing health and safety advice and guidance freely available from its website in PDF format, to view and print. The publications cover the full range of HSE’s guidance, as well as approved codes of practice (ACOPs) and guidance on regulations. HSE is making the information available to help employers better understand their legal duties and what health and safety precautions they need to take, and to help safety representatives in maintaining and improving health and safety in the workplace. Businesses will still have the option to buy professionally produced, printed versions from HSE Books. Although the publications will be made freely available online, Crown copyright will still apply, and organisations wishing to reproduce the information will need an appropriate licence from the Office of Public Sector Information (OPSI).
For more information, visit the HSE website
When a consultant or employee can use ‘your’ information for another client
June 29, 2009
Employers whose consultants or contractors learn how to do something while working for them will welcome a recent court decision giving guidance on when the consultant or contractor can use that information when doing work for a rival business, and when they can’t.
A consultant helped a company develop a new product – a mosquito net impregnated with insecticide to kill the mosquitos. In the course of that work, the company created a database, which included information about the formulae for different pesticides, and test results. The consultant resigned, but then helped a rival business (set up by two ex-employees) develop a similar product. The first company claimed he had used confidential information and trade secrets contained in the database. There had been no written consultancy agreement with the first company, containing confidentiality clauses, so the first company claimed he owed it an implied duty to keep its confidential information secret, which he had breached.
Ordinarily, the implied duty applies only to employees. A consultant (or any other non-employee) is under no implied duty of confidentiality; there has to be an express agreement. The consultant also argued that he was just using skills and experience gained in his work as a consultant. The law protecting confidential information does not go so far as to stop someone from using their skills and experience, even if they gained some or all of it working for you, in some future employment or business enterprise. However, the court said that where a business can show that the consultant’s role is analogous to that of an employee, the implied duty of confidentiality could apply. In this case, the consultant was brought in specifically to develop the new product, and paid to do so. He was supervised like a senior employee, worked hand-in-hand with employees on aspects of the development, knew that most of the information in the database came from work and tests paid for by the company, and knew (from steps taken to make sure other outsiders kept the information confidential) that it was confidential.
Importantly, he appreciated the commercial importance to the business of the launch of the new product, so that it was likely he realised that information associated with it was confidential. The court also said that the information in the database, including formulae and conclusions drawn from tests, could be trade secrets, and could be distinguished from the general knowledge, skill and experience of a consultant in this area. While the first company won, the case makes clear the importance of a written agreement containing confidentiality clauses when any outsider will, or might, have access to your business’s confidential information or trade secrets.
Drive home health and safety on the road
June 29, 2009
There are some things most people do at one time or another when driving that are illegal.For instance, when was the last time you drove at 34 mph in a 30 zone, or got in the car and drove off without doing up your seatbelt? If caught you risk points on your licence and a fine. A bit inconvenient but unlikely to cost you your job – unless you’ve already got a licence full of penalty points and you rely on driving for your work.
If you have employees that regularly drive as part of their job (even if it’s just the commute to work), it’s a good idea to remind them of some aspects of the Highway Code they (and you) may have forgotten. There are the obvious ones: don’t drink and drive; don’t exceed the speed limit; don’t use a hand-held mobile, even if it’s to check your text messages and you’re sitting at some traffic lights. But did you know that it is illegal for an employee to smoke in a company vehicle?
Under health and safety legislation, employers have a duty to ensure the safety and welfare of their employees, and also a responsibility to ensure that others are not put at risk by their work activities. So, help your employees out by having clear company policies and guidelines on driving for work. They could include:
- eliminating journeys where possible, by teleconferencing, rescheduling deliveries etc
- ensuring that vehicles are appropriate and effectively maintained
- ensuring that drivers are appropriate, ie fit to drive, legal (the Department for Transport suggests checking licences every six months), adequately trained (including training in first aid), and aware of the organisation’s policies on mixing driving with drugs, alcohol, illness, stress, fatigue, speed and the use of mobile phones
- introducing supporting measures (such as emergency planning and incentives for safer driving)
For other practical tips for drivers visit the Department for Transport’s Driving for Work website www.dft.gov.uk/drivingforwork.
Alphabet soup – from DTI to BERR to BIS
June 29, 2009
The Department of Business, Enterprise and Regulatory Reform (BERR), formerly the Department of Trade and Industry (DTI), has merged with the Department for Innovation Universities and Skills (DIUS), to form a new Department for Business, Innovation and Skills (BIS), headed by Peter Mandelson.
The government has merged the former Department for Innovation, Universities and Skills (DIUS) with the former Department for Business, Enterprise and Regulatory Reform (BERR), to form a new Department for Business, Innovation and Skills (BIS), headed by Peter Mandelson. BERR was previously known as the Department of Trade and Industry (DTI) and, briefly, the Department for Productivity, Energy and Industry (DPEI). Four of BISs 11 new ministers are entitled to attend cabinet meetings.
Have your say: measures to help companies in distress
June 26, 2009
Businesses will welcome the opportunity to give their views on amending the insolvency rules to help businesses facing financial difficulties.
The Insolvency Service is consulting on proposed measures that will help viable firms survive in difficult times. When a company becomes insolvent, it can affect employees, directors, creditors, and suppliers alike, and these proposals are seeking to reduce those knock-on effects. The main proposals are:
- to give absolute priority to lenders seeking to recover new money they have lent to companies in difficulty – this would make it more attractive to lend to businesses in this situation, allowing them to access the funding they need to get back on their feet and stay in business;
- to give large and medium-sized companies breathing space while they seek legally binding Company Voluntary Agreements (CVAs) with their creditors, without first having to place their companies into administration; and
- to introduce new procedures to allow a court-agreed moratorium of up to three months, during which a business is protected from action by creditors, where the court is satisfied that creditors’ interests are properly safeguarded.
The Insolvency Service is particularly keen to hear the views of small businesses, who are likely to benefit most from the proposal that rescue finance should rank in front of other administration expenses. Also, while the proposals may have a direct effect on larger companies, the indirect effect of the measures may be felt by smaller businesses as suppliers and creditors of those companies. Businesses have until 7 September 2009 to respond to the consultation.
Good news on pregnancy for employers
June 26, 2009
Employers enjoyed a double benefit recently as proposed increases in paid maternity leave were blocked by the European Commission, and the new Department for Business, Innovation and Skills (formerly BERR) issued a new guide called ‘Pregnancy and work: What you need to know’.
New rights to 12-months’ paid maternity leave, and the ability for parents to share paid leave between them following birth of their child (so that the father could take up to six months’ paid leave out of the mother’s entitlement so she could return to work earlier), have been shelved because of the recession. Meanwhile, BIS (formerly BERR) have published a new guide Pregnancy and work; what you need to know for employers, containing a checklist setting out what they need to do, and why.
Have your say: new medical ‘fit note’ to replace current ‘sick note’
June 25, 2009
Businesses have the opportunity to shape the new medical ‘fit note’ that is due to replace the existing ‘sick note’ next spring.
The Department for Work and Pensions (DWP) is seeking the views of employers on its proposal to replace the existing medical statements (forms Med 3, Med 4 and Med 5). These forms have remained largely unchanged since the NHS was founded, despite the fact that work has generally become safer and less physically demanding, employers are more flexible about taking measures to encourage employees to return to work, and healthcare professionals recognise the positive health benefits of being in work, even for those who have to limit their activities for physical or mental health reasons.
The proposed changes include:
- adding a new option on the medical statement to allow a doctor to indicate where someone ‘May be fit for some work now’, as an alternative to whether a patient is fit or not fit for work;
- rationalising the current set of medical statements, by removing forms Med 4 and Med 5, to simplify the process for GPs and employers; and
- permitting GPs to issue statements printed by their practice’s computer systems as opposed to handwriting them on a statement pad.
The new ‘fit notes’ are due to be rolled out across Britain in spring 2010. Businesses have until 19 August to respond to the consultation.
- Download the consultation document ‘Reforming the Medical Statement’ from the DWP website
Directors representing someone else must still put company first
June 25, 2009
Limited company directors, appointed to represent an investor, or some other outsider, must still put the company’s interests above those of whoever appointed them if there is a conflict, the court of appeal has confirmed.
Every director owes statutory duties to their company, such as the duty to act in the way they consider, in good faith, most likely to promote the success of the company for the benefit of its members as a whole. However, sometimes particular shareholders have the right to nominate a director or directors to the board of a company. For example, in a joint venture company, each of the joint venturers often has a right to nominate ‘their’ directors’ to the board.Substantial outside investors in a company, such as venture capitalists, also often insist on the right to nominate a director to the board, as one of the conditions of investing. In these cases, the shareholders often think of the director they appoint as being there to represent their interests. In these situations, there can be a conflict between the director’s legal duties to the company, and the expectations of those appointing them that the director will look after their interests.
The court of appeal has recently confirmed that a director’s duties owed to their company are always paramount, and override the interests of the shareholder nominating them. In the particular case, Neath and Swansea rugby clubs had set up a joint venture company called Neath-Swansea Ospreys Limited (‘Ospreys’). Neath had nominated a director to its board. An owner of Neath rugby club alleged that the actions taken by the nominated director, while acting as a director of Osprey, breached his duties to his nominator, Neath. The court of appeal said that, when acting as a director of Osprey, the director’s legal duties were owed to Osprey, and he had to act accordingly. He owed no duty to the organisation that nominated him. So, if he believed a particular decision was in the best interests of Osprey, he had to support it, even if it was contrary to the interests of his nominator, Neath.
Have your say: proposed equal treatment for temporary agency workers
June 19, 2009
Businesses need to take notice now of the new rights for temporary workers that will apply in the future, as the government consults on what they should be.
The Department for Business, Enterprise and Regulatory Reform (BERR) is consulting on how to implement the Agency Workers Directive (2008/104/EC). In May 2008, BERR reached an agreement with the CBI and TUC that allows for equal treatment of employees and temporary agency workers once the agency worker has been in a given job for 12 weeks. It proposes to implement the Directive on that basis. In doing so, it aims to balance appropriate protection for temporary agency workers against the need for a flexible labour market.
In particular, BERR is seeking views on:
- who should be covered by the Directive (eg the definition of pay, holiday entitlement, duration of working time, the 12-week qualifying period);
- how the principle of ‘equal treatment’ should be established;
- liability for compliance with obligations under the Directive; and
- dispute resolution.
Even though the Directive does not need to be implemented in member states until December 2011, the key issues are being identified now, and findings obtained at this stage will inform the draft regulations to be produced later, along with guidance. Businesses have until 31 July to respond to the consultation.
- Download the consultation response form from the BERR website http://www.berr.gov.uk/consultations/page51233.html
Case law: overpayments to subcontractor may not be recoverable
June 19, 2009
Businesses must check their subcontractors’ invoices carefully, as they may not be able to recover amounts inadvertently overpaid, according to a recent Court of Appeal decision.
In this case, subcontractors provided services to the main contractor, and submitted invoices calculated on the basis of a daily rate, although there was no record of the number of hours’ work on which the daily rate was calculated. When the subcontractors told the contractor that they wanted to increase their daily rate, the contractor responded with a claim that the daily rate used for the previous six months’ invoices, most of which had been paid, was too high, and that the subcontractors owed them money. A judge in the county court decided that the contractor was entitled to have the invoices re-assessed on the basis of the work actually done by the subcontractors, and could use the difference to reduce the amount payable on the outstanding invoices. However, the Court of Appeal ruled that the judge had been wrong not to distinguish between paid and unpaid invoices; in the absence of any misrepresentation or mistake by the subcontractor, he had no right to permit the contractor to re-open the invoices that had already been paid. Furthermore, the court found that the contractor had made a further substantial payment to the subcontractors after it became aware of the issue of overpayment, which meant that it had waived any claim to recover the money.
This case acts as a useful reminder to businesses to check invoices carefully and, wherever possible, ensure that charges, and the basis on which they are payable, are agreed in writing beforehand.
Case law: breach of contract remedied in constructive dismissal case
June 19, 2009
Employers will welcome clarification of the circumstances in which a breach of contract may be remedied in a constructive dismissal, following a recent ruling.
In this case, an employee, who was a university professor, was involved in marking student exam papers. He considered that a number of the papers were of poor quality and awarded low marks. However, his employer arranged for the papers to be re-marked, with higher marks awarded, without consulting the employee. The employee was unhappy.
Despite an internal investigation conducted by the employer, which vindicated him, the employee resigned, claiming constructive dismissal on the basis that there had been a breach of contract by the employer and, consequently, the relationship of trust and confidence had been destroyed. The employee’s claim was upheld by an employment tribunal. On appeal by the employer, the Employment Appeal Tribunal (EAT) found that there had been a fundamental breach of contract by the employer. However, the employer had, if judged objectively, remedied the breach by holding the internal investigation. This meant that, when the employee resigned, the employer was no longer in breach of contract. The EAT found that the tribunal had incorrectly applied a subjective approach (whether the employee considered himself exonerated by the internal investigation, so that trust and confidence was restored), rather than an objective approach. If it had applied an objective approach, it would have been bound to have concluded that the breach had been remedied.
The tribunal was therefore wrong to rule that the breach had not been remedied by the employer’s grievance procedure. In reaching its decision, the EAT reviewed the authorities on the ‘range of reasonable responses’ test applied by the tribunal (ie where an employer shows that a dismissal was for a potentially fair reason, a tribunal must decide whether the dismissal fell within the range of reasonable responses and was fair), and ruled that such a test is not appropriate in determining whether an employee has been constructively dismissed.
Case law: guidance on ‘last straw’ in constructive dismissal claims
June 19, 2009
Employers will welcome guidance in a recent case on what amounts to the ‘last straw’, where an employee leaves following a series of actions by the employer which, when taken together, constitute a breach of trust and confidence.
The facts of this case were as follows: an employee had an informal meeting with his line manager, at which he was advised of 13 areas of concern regarding the performance of his duties; he was told that the interview was the precursor to a formal disciplinary interview. After receiving the notes of the meeting, the employee became extremely depressed, and did not return to work again. There was correspondence over a period of six months between the employee and employer, with a view to resolving the outstanding issues but, ultimately, the employee resigned. He brought a claim in the employment tribunal for constructive dismissal, alleging that one of two letters from the employer had been the ‘last straw’, breaching the implied duty of trust and confidence.
The tribunal upheld the employee’s claim that he had been unfairly dismissed. However, the Employment Appeal Tribunal (EAT) allowed the employer’s appeal, on the basis that the tribunal had failed to identify the ‘last straw’; and, in any event, the letters put forward as potentially being the ‘last straw’ could not reasonably have been viewed as such by any tribunal, as they were written in professional and appropriate terms, and genuinely sought to resolve the issues.
Case law: equal pay compensation payable in respect of successive contracts
June 19, 2009
Employers need to take account of a landmark ruling that entitles employees to bring an equal pay claim in respect of periods of employment under an earlier contract.
This case involved two employees working for a local authority who reduced the number of hours that they worked, for which they signed new contracts of employment. When they brought equal pay claims against their employer two years later, an employment tribunal ruled that they were entitled to claim compensation for the period before their current arrangements took effect. The Employment Appeal Tribunal (EAT), however, ruled in favour of the employer, stating that signing the new contracts indicated that the previous arrangements had come to an end, and any claim in respect of that period needed to be made within six months of the end of the contract. So, the claims for the earlier period were presented out of time.
In the Court of Appeal, the employees argued successfully that a ‘stable employment relationship’ existed during the period covered by both the earlier and the later contracts, and therefore they were entitled to claim compensation in respect of the whole period. This approach had previously been applied by the House of Lords in a case where there had been a break between contracts; this case now removes the anomaly that had arisen, so that an employee with no break between contracts has equivalent rights to an employee who has a break between contracts.
Employers must take care to avoid equal pay claims arising in the first place, or face potentially high claims for compensation.
Case law: guidance on ‘normal day-to-day activities’ for disability discrimination
June 19, 2009
Employers need to be aware of the way in which ‘normal day-to-day activities’ may be interpreted by a tribunal for the purpose of a disability discrimination claim, following a recent ruling.
In this case, a police officer suffered from ME and was required to work night shifts as part of his work pattern. One of the symptoms of his condition was that he suffered mobility problems, especially in the early hours of the morning, which clearly affected his ability to perform his duties on night shift, and for a period of time afterwards. When the officer was dismissed, he brought a claim in an employment tribunal that he had been discriminated against on grounds of disability, and the tribunal agreed. The employer appealed, arguing that the officer had not been carrying out ‘normal’ day-to-day duties when he experienced his mobility problems, because they occurred in the early hours of the morning while he was performing his specialised job as a policeman. However, the Employment Appeal Tribunal (EAT) rejected the employer’s argument, stating that there were enough night shift workers in the UK for working in the early hours to be a ‘normal’ activity for the purposes of the disability legislation.
Case law: controlling shareholder can also be employee
June 19, 2009
Business owners or controlling shareholders can also enjoy the benefits of being employees, as confirmed by a recent landmark ruling in the Court of Appeal.
In this case, a businessman was a majority shareholder in his company, with two co-directors and a number of employees. He had a contract of employment, and he performed his day-to-day duties in accordance with the contract. When the company went into receivership, an employment tribunal ruled that he was not entitled to receive a payment from the National Insurance Fund, on the basis that his position as a majority shareholder was not consistent with the required employee status.
The businessman’s appeal to the Employment Appeal Tribunal (EAT) succeeded. The Secretary of State for Business, Enterprise and Regulatory Reform appealed to the Court of Appeal against the finding that the businessman had employee status, and the court confirmed the EAT’s ruling. It conducted a comprehensive review of the existing case law in this area, and largely approved a decision of the EAT from early 2008.
The court said that there is no reason, in principle, why someone who is a shareholder and director of a company cannot also be an employee of the company under a contract of employment. There is also no reason, in principle, why someone whose shareholding in the company gives him control of it cannot be an employee. It will not be possible to argue, in particular, that (1) the extent of his control of the company means that the control condition of a contract of employment cannot be satisfied, or (2) the practical control he has over his own destiny (including that he cannot be dismissed from his employment, except with his consent) means that he cannot be an employee.
Case law: substantial compensation for unfair dismissal of older worker
June 19, 2009
Businesses can expect to pay additional compensation if they unfairly dismiss an older worker who genuinely tries, but fails, to obtain new work, as highlighted in a recent tribunal decision.
This case concerned a 59-year-old employee who was selected for redundancy, although the employer used no objective criteria or formal selection process. Following his initial redundancy consultation meeting, he was dismissed with immediate effect and was not permitted to return to work. Even though suitable alternative work was available, it was not offered to the employee.
The employment tribunal found that the employee had been unfairly dismissed, with both substantive and procedural defects, and that the dismissal amounted to age discrimination. The tribunal noted that the employee had taken all reasonable steps to mitigate his loss, ie by applying for other jobs, undertaking training, and showing a willingness to work self-employed, but without success.
The tribunal stated, ‘It is not, unfortunately, the case that someone aged 59, 60, or over, competes on a level playing field with younger people. The reality is that age discrimination exists and is likely to be highly influential in limiting his opportunities’. On the basis that it would be more difficult for a 59-year-old to find work at an equivalent income, the tribunal awarded compensation of more than £90,000, most of which was for loss of future earnings.
Case law: court can give own interpretation to agreement where contractual terms are unclear
June 19, 2009
Businesses are advised to ensure that their contracts are clearly drafted, rather than risk expensive litigation leading to an outcome that neither party intends, following a recent Court of Appeal ruling.
The issue arose in a dispute between two parties to a property development contract, each of whom preferred their own interpretation of a provision that had not been clearly drafted. The judge who heard the case initially rejected both parties’ interpretations, but refused to give his own interpretation. As a result, the meaning of the agreement was not resolved.
The Court of Appeal, however, stated that the judge should have given his own interpretation. It said that, if an agreement could be interpreted in a way that made it enforceable and effective, a court should prefer that interpretation to any interpretation that would result in the agreement being declared void. The court also said that an interpretation which produces a result that the parties are likely to have agreed is preferable to an improbable result. In applying these principles to this case, the court gave a ruling that put the parties in a position to avoid further delay and costly litigation.
Businesses can avoid litigation altogether if their contracts are well drafted, and should not expect that a badly drafted agreement will be declared void.
Case law: equal pay claim does not need to identify individual comparator
June 19, 2009
Employers seeking to defend equal pay claims cannot rely on the fact that the claimant does not identify an individual comparator, following a recent Court of Appeal decision.
This case concerned a number of female employees who brought equal pay claims, based on the fact that they were employed on less favourable terms than men in the organisation generally. An employment tribunal ruled that it could not hear the claims, as no specific male comparator (or group of male employees) was named in the grievance. However, the Employment Appeal Tribunal (EAT) stated that the information to be provided in an equal pay case is minimal, and needs only to state that it is a claim under the Equal Pay Act.
The Court of Appeal agreed with the EAT, thereby removing a technical defence that employers may have had to an equal pay claim.
Although this case arose under the old statutory grievance procedures, and there is no longer a requirement (under the rules in force since April) to raise a grievance internally before making an equal pay claim, this will nevertheless continue to be relevant to the question of how much information needs to be given by the claimant about the comparator.
Court clarifies when a UK patent can be revoked for being ‘obvious’
June 19, 2009
The courts have recently clarified the test for when an invention is ‘obvious’, so that a patent awarded to protect it can be revoked, so existing patent owners can expect more attacks on their patents on these grounds.
If a patent has been awarded for an invention that is ‘obvious’, it can be revoked because that means it lacks an inventive step. The test is whether an unimaginative but skilled person, with common general knowledge in this area, would think it was obvious. Common general knowledge is knowledge generally known by that skilled person, that they would automatically accept as reliable.
In a recent case, the court considered whether this included what is known as "secondary common general knowledge", that is, information that would not necessarily be to the forefront of their mind, but that they would routinely obtain or be provided with to tackle the problem – for example, review articles.
The court said that common general knowledge could extend beyond general information which the skilled person would know as a matter of course or could find in leading textbooks, such as information in review articles, but that the information:
- Had to be “regarded as highly probable to be reliable”.
- Would certainly be found by the skilled person doing his job properly, as part of his normal approach to the task of identifying sources of information to use as a starting point.
- Had to inform and guide the skilled person’s approach to the problem from the outset.
The more that a “diligent search” was necessary, following leads and cross-references, the less likely that the information was common general knowledge.
Those seeking patents for inventions need to be sure that their invention could not be found to be obvious, given the extension of the test to include secondary common knowledge.
New homeowners’ scheme to help with mortgages
June 19, 2009
From 21 April, certain homeowners can reduce their monthly mortgage payments, add the amount of the deferred payments to their loan, and pay it later when their financial circumstances improve.
If your income has temporarily reduced – for example, your hours have been cut or your two-income household has reduced to one - you may be able to delay paying part of the monthly interest payments on your mortgage for up to two years.
The delayed interest is added to the principal sum due on your mortgage, as if it was part of the original sum you borrowed from your lender. When you go back to your normal monthly payments, you agree with your lender how you’ll pay it back. You may have to increase your monthly payments or lengthen your mortgage, so you pay the same each month but for longer.
The conditions you must meet are:
- You have had a temporary drop in income and cannot make your monthly mortgage payments.
- You either have an interest-only mortgage, or will switch to one. • You still pay as much as you can afford each month.
Individual lenders may have other conditions – for example, that any savings you have are only small amounts. And not all lenders are offering HMS – you need to check whether yours is.
You won't qualify for HMS if:
- You own more than one home.
- Your reduction in income is permanent – for example, because you have a long-term illness.
- You have mortgage payment protection insurance.
- In your lender’s view, you won't be able to make the reduced monthly payments either.
- You are on Jobseeker's Allowance (in which case you can claim ‘support for mortgage interest’ (SMI) instead).
Even if you are eligible for HMS your lender may suggest other options, and they will usually refer you to the Consumer Credit Counselling Service, or some other independent money adviser in any event.
If you go ahead you will need to:
- Renegotiate your monthly mortgage payments to an amount you can afford.
- Agree to pay at least 30 per cent of the interest due on your mortgage each month.
- Agree the period (up to two years) that you will pay reduced interest.
- Tell your lender if your financial circumstances change.
- Have a review of your circumstances after a year with your lender.
Click the links to find a list of participating lenders and independent money advisers http://www.direct.gov.uk/en/HomeAndCommunity/Keepingyourhomeevictionsandhomelessness/Mortgagesandrepossessions/DG_177637 and find out more about SMI http://www.jobcentreplus.gov.uk/JCP/Customers/WorkingAgeBenefits/Dev_016128.xml
Undue influence and unequal treatment of children
June 19, 2009
Where one child seems to have benefited disproportionately from a parent’s generosity, it can lead to allegations of undue influence from brothers and sisters who have lost out. A recent case shows how inequalities can be justified and how a parent can take steps to reduce such disputes after their death.
A son appointed as her attorney by his mother sold her house in 1993. However, she personally dealt with the solicitor handling the sale, including instructing him to pay the proceeds of the sale to her son.
The woman’s daughter claimed a share in the proceeds of sale. She said that her brother had used undue influence over their mother in order to get the entire sale proceeds.
There was no evidence of overt acts of improper pressure or coercion by the son, so the onus was on the daughter to present evidence that raised a presumption of undue influence.
Twofold test for presumption
A parent’s failure to treat their children equally is not, in itself, evidence of undue influence. Rather, she needed to show there was “a relationship of trust and confidence” between her mother and brother (that is, that there was some dependency of the mother on the son – for example, because she was older and relied on his judgment or acumen), and that the transaction itself “called for an explanation”.
Evidence from the solicitor who handled the sale was that the mother was aware of what she was doing, and the consequences. The effect had been explained to her, and she had understood. Further evidence also showed that she was a woman of strong character, and that she had not subsequently shown any remorse over the gift. There was no evidence of dependency.
The sum involved was substantial, and giving it to her son left the mother unable to afford a property of her own, so the transaction did call for some explanation. Significantly, however, evidence was also given that the mother was aware that her son had lent the daughter money for her business, which had subsequently failed. This provided a possible explanation for the transaction.
Other common instances where parents may treat children unequally are where one child has already received money – for example, to help buy a house or pay for a course. Another is where one child has given up time or an opportunity to look after or help the parent. In these circumstances it is reasonable to reward them, at the expense of their siblings. Or the inequality may be a punishment for the child’s behaviour.
Overall, the court decided that there was no undue influence.
Recommendations
A parent making unequal provision for their children (or grandchildren) should state in writing – for example, in their will, or in a separate letter of guidance to executors:
- That they understand what they are doing, and its consequences.
- The reason for the inequality.
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