Fixed-term & permanent employment

From 10 July, fixed-term employees become permanent employees when they have been employed on a fixed-term contract (or renewals of it) for four years or more, unless the employer can objectively justify continuing to employ them on a fixed-term contract.

 

If an employee has been employed on a series of fixed-term contracts, the four years will only count as continuous employment if any breaks between the contracts were either for less than one week or for a specified reason, such as sick leave, maternity leave, or a temporary cessation of work.

 

The employer should give the employee a statement of change to their terms and conditions within one month of the fourth anniversary. This should specify the notice period the employee is entitled to, rather than the date the fixed term expires. Failure to do this can result in an award of between two and four weeks’ pay.

 

 

More holidays

The government is consulting on proposed increases to statutory holiday entitlement in England, Wales and Scotland. The increases are aimed at giving workers paid time off for bank holidays in addition to the current four-week holiday entitlement. Currently, there is no statutory right to have the bank or public holidays off. If workers are given these eight days off, an employer can count these days as part of the four  weeks’ paid holiday that nearly all workers are entitled to under the Working Time Regulations 1998.

 

The government is proposing that workers will have their right to paid holiday increased from 20 to 24 days a year from  1 October 2007 (pro-rata for part-timers) and to 28 days by 1 October 2009, under the Work and Families Act 2006. However, in its public consultation document on how the proposals will work in practice, the government does not  specify that the extra days of holiday must be taken on the bank/public holiday days. You can download a copy of the consultation from the Department of Trade and Industry’s

website at www.dti.gov.uk/consultations/page30026.html. 

 

 

Recourse to public funds

Most people applying under the immigration rules to come to, or extend their stay, in the UK must satisfy the Home Office that they can live here without having recourse to public funds, including welfare benefits. The Court of Appeal has ruled that if such a person indirectly gains advantage from a family member’s benefit (for example, housing benefit), but there has been no increase in the amount of benefit actually paid, this is not to be counted as having recourse to public funds.

 

 

No shift on holiday pay

The Court of Appeal has ruled that a contractual calculation for working out holiday pay for shiftworkers is correct. The workers, who were baggage handlers and customer services advisers for British Airways, were paid more when they worked night and weekend shifts. Their holiday pay was calculated by assessing their average weekly pay, and then deducting an amount to allow for the extra pay they had earned for working higher-paid shifts. They argued that this deduction was unlawful but the Court of Appeal did not agree, and said the deduction merely smoothed out varying amounts of shift pay.

 

 

Does it add up?

The TUC Worksmart website has launched an online interactive national minimum wage calculator. People can enter their details, for example,  whether they are homeworkers, what their pay is, how many hours a week they work, and the calculator will work out whether or not they are being paid the national minimum wage. The calculator can be accessed at www.worksmart.org.uk/minwage_calc.php .

 

 

Breach of contract

The Court of Appeal has decided that a breach of employment contract claim for more than £25,000 (the employment tribunal limit on such claims) must be brought in the civil courts. Previously, it was unclear whether or not an employee could bring a claim up to the £25,000 limit in the employment tribunal and then make a separate claim for the balance in the courts.

 

The Court of Appeal has now said that claimants with both an unfair and a wrongful dismissal claim should limit their tribunal claim to the unfair dismissal and pursue the wrongful dismissal through the courts, unless they are willing to limit the wrongful dismissal claim to £25,000.

 

 

Personal injuries

The Law Society, lawyers, insurers and the health sector have agreed that, for claims for personal injuries below £10,000, the medical records of the claimant should not normally be requested.

 

 

Tax credit migration

The government’s plan to move families over to child tax credit is to be delayed again. Nearly a million claimants continue to receive child  allowances and premiums in their income support and income-based jobseeker’s allowance (JSA) instead of receiving child tax credit.

 

The legislation currently provides for this to continue until the end of December. However, the government has now announced that a final decision will not be made until 2007 on whether the transfer should take place in that year.

 

Since April 2004, anyone claiming income support or income-based JSA will not have received amounts for children in their claim and will have had to claim child tax credit instead.

 

 

Arthritis and DLA

The National Rheumatoid Arthritis Society (NRAS) has produced a booklet to help adults with rheumatoid arthritis claim Disability Living Allowance (DLA). It focuses on the particular problems faced by people with rheumatoid arthritis given the variable nature of the disease and its unpredictability. Copies can be obtained from NRAS by telephoning 01628 823524 or completing a request form on its website atwww.rheumatoid.org.uk.

 

 

Land registry fees

From 7 August, the Land Registry is raising its fees for searches of the register and for copies of title documents. Fees for registering property are not being changed. The fees for electronic searches will be lower than those for paper and telephone searches and, since 12 July, new leases and mortgage documents are being added to the Land Registry’s online register.

More information about Land Registry fees and the Land Register Online can be obtained from the Land Registry website at www.landregistry.gov.uk.

 

 

Local housing allowance

The local housing allowance (LHA) is a new way of calculating housing Benefit for private sector tenants. The level of benefit is based on average rent levels in the area and payment is generally made to the tenant rather  than the landlord. The LHA is currently being piloted in 18 areas across the Country. The pilot areas are: Argyll and Bute, Blackpool, Brighton and Hove, Conwy, Coventry, East Riding of Yorkshire, Edinburgh, Guildford, Leeds, Lewisham, North East Lincolnshire, Norwich, Pembrokeshire, St Helens, Salford, South Norfolk, Teignbridge, and Wandsworth.

 

The Welfare Reform Bill, currently before Parliament, includes proposals to roll out the LHA nationally for private sector tenants only. This will not happen before April 2008 at the earliest. More information can be found on the websites of the local authorities involved and also on the Department for Work and Pensions website at www.dwp.gov.uk.

 

 

Possession orders for secure tenants

A new court form (N28A) has been issued for a two-stage postponed possession order for secure tenants. Judges should be asked to use this form instead of making a suspended possession order on form N28. The procedure for fixing a date for possession if a secure tenant breaches a postponed possession order has been added to the civil procedure rules practice directions (PD55 Section IV). The new practice directions and court form have been effective since 3 July.

 

 

New energy ombudsman

A new service has been set up to resolve disputes between consumers and their electricity and gas suppliers. The Energy Supply Ombudsman can deal with complaints about bills for gas and electricity services and about problems when changing supplier. The service is free and independent. Complaint forms may be completed online or by telephone. You can get further information and a leaflet telling you about the service from the Energy Supply Ombudsman website atwww.energyombudsman.org.uk.

 

 

Changing channels

Since 31 July, people will no longer be able to buy a TV licence from a Post Office.  Instead, payment can be made at PayPoint outlets in places such as newsagents, supermarkets and convenience stores. Those wishing to buy a TV licence from a PayPoint outlet can either buy the licence outright or can save towards it by paying in instalments at the PayPoint outlet. TV licence stamps are also being phased out and replaced by a savings card.

 

 

Calculating statutory maternity pay

From 6 April 2005, any pay rise made after the start of a woman’s maternity pay calculation period must be taken into account when calculating her statutory maternity pay. However, the calculators provided by HM Revenue and Customs (HMRC) on its website and on the CD-ROM it sends to employers do not take account of pay rises. A woman who thinks she may

have been underpaid statutory maternity pay should raise the issue with her employer and/or make a claim to HMRC.

Voluntary returns for asylum seekers

The Voluntary Assisted Return and Reintegration Programme (VARRP), which originally ended on 20 June, has been extended. It is operated by the International Office for Migration (IOM) in conjunction with the Immigration and Nationality Directorate of the Home Office. To be eligible for the extended scheme, applicants must have applied for asylum before 1 January, apply for VARRP by 31 October and leave the UK between 1 July and 31 December.

 

Eligible people can receive £3,000 to help them reintegrate into their home countries if they decide to return. This is in addition to help with obtaining documents and travel costs.

 

 

New rights for cohabiting couples?

The Law Commission is consulting on new rights for cohabiting couples. It has issued a lengthy consultation paper and would like comments by 30 September. A final report with recommendations for reform will be published in August 2007. The proposals provide for cohabiting parents who have not married or registered a civil partnership to make financial claims against each other’s earnings and assets when they split up. The Law Commission is asking for views on whether the same rights should be extended to unmarried couples without children, including same-sex couples, and whether there should be a minimum period of living together before a couple would be eligible to make a claim. There is more information about the proposals on the Law Commission’s website atwww.lawcom.gov.uk/cohabitation.htm.

 

 

The Health ProfessionsCouncil (HPC)
regulates 13 health professions, including occupational therapists, physiotherapists and dieticians. It is independent of the Department of Health.

 

If health professionals want to use one of these 13 professional titles, they must be on the register of the HPC and meet the HPC’s standards of professional skills, training and behaviour. If someone has a complaint about the competency, conduct or health of a health professional who is on the register, the HPC can take action. This might include stopping them from practising. It is always advisable to check that a health professional whose services you intend to employ is registered. You can do this by telephone on 0845 300 4472 or by checking the HPC register at www.hpcheck.org. More information about the work of the HPC is on its  website at www.hpc-uk.org.

 

 

Property licensing to be enforced

Since 6 July, local authorities in England will have new powers to enforce the licensing of privately rented property. A local authority will be able to  prosecute and fine a landlord who is running a property that should be licensed but is not. It will also be able to apply to a tribunal for a rent  repayment order in order to get back any housing benefit which the landlord has received in the rent. If a local authority prosecutes or is granted a rent repayment order, occupiers may also be able to obtain a rent repayment order to claim back any rent they paid the landlord (not including housing benefit).

 

Spouses win more rights on divorce

The House of Lords has recently decided two cases which mean that people who sacrifice careers to bring up children or look after the home should be compensated. They may also, in some cases, claim a share of their ex-spouse’s future income. In the case of Miller v Miller, the couple had been married for less than three years and had no children. However, Mrs Miller had given up a lucrative career when she married and her husband’s income had increased during their short marriage. The law lords upheld the previous High Court judgement that she should receive £5 million from the estimated £17.5 million fortune of her ex-husband. The fact that their marriage had ended because her ex-husband had had an affair was not considered relevant. In the case of McFarlane v McFarlane, the couple’s marriage had lasted 16 years and they had three children. The law lords reversed an earlier decision of the Court of Appeal which said that Mrs McFarlane should only receive annual maintenance payments for five years. She will now receive them for life unless she remarries or her ex-husband applies to the court for a variation of the order at a later date. In both cases, the sums involved are not based entirely on need, but provide compensation to each woman for giving up her former life and for the fact that each man’s earning capacity had been improved at his wife’s expense.

 

 

New postponed possession orders

Courts now have three options when deciding to make a possession order on discretionary grounds. They can make an outright possession order or a suspended possession order or a postponed possession order. The Court of Appeal approved the wording and procedure for the new postponed possession order on 23 May. This order is better for tenants than a suspended possession order. It means that possession is postponed indefinitely and the tenancy will continue as long as the terms of the postponement are maintained. If the tenant breaks the terms of the order, the landlord can apply to court for a date for possession but must notify the tenant at least 14 days in advance. The postponed possession order has been created because of an earlier Court of Appeal decision which held that a secure tenant subject to a suspended possession order became a tolerated trespasser on the date of possession. This case was covered in the article ‘Tenant or trespasser’ in May update. As well as secure tenants, this earlier case also affects fixed-term assured tenants and tenants who became statutory periodic tenants at the end of a fixed-term tenancy.

 

 

Empty properties

Local authorities in England have new powers to bring back into use privately owned property that has been empty for at least six months. Since  6 July, a local authority will be able to apply to a tribunal for approval to make an empty dwelling management order. This will enable the local authority to take over management of the building and take steps to bring it back into use.

 

 

Challenging the banks

Some default charges routinely applied by banks and card companies have been successfully challenged in the courts. The Office of Fair Trading (OFT) has said in a recent report that any credit card default charge of more than £12 is unfair. The OFT is likely to challenge charges above this level unless there are exceptional business reasons for them. It has indicated that it may take a similar line with other banking charges, for example, unauthorised overdraft charges. Clients can challenge excessive charges by writing to their bank or card company and asking for the charges to be waived or refunded. Charges can be challenged going back six years. Further information about successful challenges, including sample letters, is available from: Which (www.which.net), Govan Law Centre (Scotland) (www.bankcharges.info), Bankchargeshell (www.bankchargeshell.co.uk) and the Consumer Council for Northern Ireland (www.gccni.org.uk).