What Are The Fair Reasons That An Employer Can Rely On In Dismissing An Employee?
Under the law of England and Wales, when an employer dismisses an employee, to avoid having an unfair dismissal claim against them, the employer needs to ensure that they have complied with steps as set out in employment law in England and Wales, which includes (but are not limited to) having a clear disciplinary policies and procedures in place.
However, in the event that there is an unfair dismissal claim against the employer, a dismissal would be considered ‘fair’ if the employer could demonstrate to the tribunal that the reason for dismissal was one of the five potentially fair reasons for dismissal, as set out in section 98(1) and (2) of the Employment Rights Act 1996.
The five potentially fair reasons for dismissal are: capability or qualifications, conduct, redundancy, breach of a statutory duty or restriction, and “some other substantial reason” (SORS). Please note that a dismissal could fall into more than one of the potentially fair reasons as they often overlap. Therefore, it is vital for the employer to refer to every of the above reasons when they defend an unfair dismissal claim. We will now briefly outline these potentially fair reasons.
- Capability or Qualifications
As the name suggests, capability relates to the employee’s ‘skill, aptitude, health or any other physical and mental quality’, as set out in section 98(3)(a) ERA 1996. In practice, capability dismissals usually fall into either because of poor performance of the employee, or because of the employee’s ill health.
Qualifications dismissal relates to any ‘degree, diploma, or other academic, technical or professional qualification’ that is considered to be relevant to the position of the employee, as set out in section 93(3)(b) ERA 1996.
- Conduct
According to 96(2)(b) ERA 1996, it is potentially fair to dismiss an employee due to their ‘conduct’. It could be either a single act of serious misconduct, or gross misconduct, or a series of acts which are less serious but have persisted. Examples include (but are not limited to) theft or dishonesty, breach of certain terms of the contract, repeated poor attendance, alcohol or drug abuse.
- Redundancy
This applies to where dismissal is ‘wholly or mainly attributed to’ reasons such as business closure, workplace closure, or reduced requirement for employees. The employer will have to establish that it has acted reasonably and fairly in dismissing the employee for that reason.
- Breach of a Statutory Duty or Restriction
This applies for when the employee cannot do their job that is required in their contract or they or their employer would be contravening ‘a duty or restriction imposed by or under an enactment’, as set out in section 98(2)(d) ERA 1996. A good example of this would be dismissal because continued employment of the employee would breach the Immigration Rules.
- Some Other Substantial Reason
This dismissal is for ‘some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held’, as set out in section 98(1)(b) ERA 1996. As there is no further legislation or statutory guidance on what this term means, it is usually looked at by the tribunal whether the employer has followed a fair procedure and whether the decision to dismiss the employee is within a reasonable response of a reasonable employer.
Our solicitors are focused on problem solving and are highly experienced in dealing with complex issues. If you have any queries regarding employment or dispute, please contact us.
Please note that information provided on this article is provided for general informational purposes only, and should not be construed as or is not intended to be a substitute of legal advice.
Rights As A Tenant In A Private Rented Property
A tenancy agreement sets out the rights and responsibilities between the landlord and tenants. In the unfortunate event where an issue arises then the tenants should refer to the tenancy agreement. Tenants have additional rights which are not always set out in the tenancy agreement. To give an example, the House in Multiple Occupation (HMO) licensing.
We have set out below the key points that tenants should be aware of when renting a property.
Additional fees
The Tenant Fees Act came into force on 1st June 2019 and the centre of this rule is that it prevents landlords from charging tenants with extortionate fees. The landlords are allowed to charge the tenants rent, tenancy deposit, and or a holding deposit.
Under the Tenant Fees Act, landlords are no longer allowed to charge tenants the cost of their own references or police checks, general administration fees, or cleaning fee. Landlords who charge fees that fall outside of the Tenant Fees Act may be liable to pay a fine of £5,000 however if the landlord repeats the breach, then this could lead to a criminal charge or a fine of £30,000.
However, the landlord can charge certain fees provided that it is written into the tenancy agreement, these are set out below:
- Late Rent Fees
Landlords can charge fees for rent payments that are due over two weeks. The fees can be charged up to 3% plus the Bank of England base interest rate.
- Default Fees
This includes the tenant losing a key or damaging the property. The tenant can only be charged a reasonable amount as long as the evidence of the cost can be provided.
- Changes to Tenancy Fees
Landlords can charge up to £50 for making changes to the terms of the tenancy agreement. This can include changing a tenant’s name or allowing a pet.
Disrepair
Under section 11 of the Landlord and Tenant Act 1985, landlords have the obligation to keep
the property in a habitable state for the tenants to reside in. This includes heating, hot water, access to power supply, water, etc.
These repair obligations cannot be changed by any terms written into the tenancy agreement and landlords cannot charge tenants for any repairs that fall under their mandatory obligations.
However, tenants would usually be responsible for the maintenance of the property. This includes the general upkeep such as changing the lights, unclogging sinks, gardening, and cleaning.
Should a tenant experience any disrepair issues such as mould, no heating, no hot water, etc then they should first report this to the landlord immediately.
If the landlord refuses to carry out the repair works then the tenant has various options available to them such as reporting to the local council and or issuing proceedings against the landlord.
House in Multiple Occupation License
The Housing Act regulations ruled that an HMO license is required for any house or flat that is occupied by five or more people who are not all related and live in the property as their main home. Landlords are therefore obliged to apply for a license application at the local council if the property needs licensing.
Ignoring the rules would result in the landlords paying a heavy price. There would be a risk of being prosecuted by the council and if found guilty landlords could get a criminal record, and be fined an unlimited amount. Alternatively, tenants can apply for a Rent Repayment Order and the landlord may have to repay up to 12 months of rental income.
Deposit
Deposits were collected as part of the renting process and landlords are obliged to pay the tenants’ deposits into a deposit protection scheme. This deposit protection was introduced on 6 April 2007 as part of the Housing Act 2004 and these protection schemes offer a free service to help resolve deposit disputes between the landlords and tenants.
When a deposit was not protected under a scheme and no further information was provided by the landlord, tenants can apply to the County Court for an order that the landlord returns the deposit back or protect it under one of the tenancy deposit protection schemes.
There are rules on what costs can be deducted from the deposit. And the landlord cannot, in general, charge for the costs of maintaining the wear and tear of the property. The usual costs can include deductions for (1) damage to the property and missing or broken items, (2) cleaning fees, and (3) unpaid rent or bills.
If tenants disagree with how the deposit is returned, or the tenant does not agree with some of the costs that landlords have taken out of it, tenants must ask the landlord for a breakdown of the specific costs which were taken out of the deposit.
In the case where an agreement could not be reached between the landlord and tenant, the parties can propose to use the free alternative dispute resolution service offered by the tenancy deposit scheme.
Under the alternative dispute resolution service, the parties are required to accept the decision made and will not be able to apply the decision to the courts. If on the contrary the landlord or tenant does not agree to use the dispute resolution service, then the dispute will usually go to the County Court.
If you require assistance in relation to private renting disputes, or you would like to learn more about the rights and obligations shared between landlords and tenants in private properties, please feel free to contact us and we can discuss and advise on your best way forward.
Methods of Enforcing Your Court Judgements
A winning party (“judgment creditor”) may obtain a judgment for a lump sum from the losing party (“judgment debtor”) however, this does not necessarily mean that the judgment debtor will voluntarily pay what is owed under the judgment. The burden is on the judgement creditor to take enforcement steps.
If the judgment debtor fails to do so voluntarily by the date determined by the court, then the judgment creditor would need to consider commencing enforcement actions in order to seek recovery of the money owed to them under the judgment.
It is vital for judgment creditors to investigate the judgment debtor’s assets / financial position first before commencing lengthy litigation proceedings.
We have briefly set out below a number of enforcement methods a judgment creditor may commence upon receipt of a court judgment.
- Taking control of goods is suitable when the judgment debtor owns assets, and this allows an enforcement officer to seize the judgment debtor’s goods and sell them in order to use the proceeds of sale to satisfy the judgment debt. Goods that are exempt include the basic domestic needs and tools of trade. The County Court dealt with debt sum up to £600 and the High Court dealt with debt sum of more than £5000.
- Third-party debt orders allow the court to intercept money that is owed to the judgment debt, such as credit balance in the judgment debtor’s bank account and divert this to us in settlement of the judgment debt.
- Charging orders are suitable where the asset in question is considered a land, but this only provides security for the judgment debt and not payment. For payment, an order for sale will be necessary after the charging order has been obtained.
- Attachment of earning orders enables the judgment debtor’s salary to be intercepted and diverted to us in settlement of the judgment debt. It is important to bear in mind that only a small percentage will be deducted from their salary so if the judgment debtor is on a fairly low income then it could sometime before the debt is repaid.
- Insolvency proceedings are another effective way to obtain payment. The threat of bankruptcy of an individual or winding up of a company can often be enough to prompt payment, should the judgment debtor has assets available to pay.
If you have a judgment debt that you wish to enforce or require assistance in obtaining a judgment, please contact us. Our experienced civil and commercial litigation team can advise the best course of action for your case and commence the enforcement proceedings on your behalf to assist you in recovering the judgment debt.
Our experienced civil and commercial litigators have many years’ experience in supporting businesses and individuals through challenging times. We have provided a speedy, effective debt recovery services to all our clients’ needs.
Across our team, we speak many languages including Mandarin and Cantonese, Gujarati, Russian, Portuguese, Korean and Spanish. With access to our solicitors at two locations, one in City and one in Mayfair, we cover a very broad spectrum of varying clients needs.
New Divorce Laws - "No-Fault" Divorce
New Divorce Laws - "No-Fault" Divorce
The Divorce, Dissolution and Separation Act 2020 came into force in England and Wales on 6 April 2022 and this signified a major development of England’s divorce laws for the past 50 years.
Key changes made under the new Act:
- The need for the married couple to prove the irretrievable breakdown of marriage by citing grounds of unreasonable behaviour and separation was replaced by a sole or joint statement.
- The statement of irretrievable breakdown of marriage serves as a piece of conclusive evidence for the court to make an order and this prevents a spouse from contesting the divorce.
- A minimum period of 20 weeks between the start of divorce proceedings and the application for conditional order was introduced.
- New language has been adopted to facilitate a better understanding of the divorce application.
Referring to the first point, the new divorce application introduced a “no-fault” basis which completely replaced the requirements under the previous divorce laws. This is because the previous divorce laws required divorcing couples to prove the irretrievable breakdown of their marriage by citing one of the five existing grounds, these can be referred to as:
- Adultery
- Unreasonable behaviour
- Dissertation by one party
- Two years separation with the consent of the spouse; or
- Five years separation without consent
The previous divorce laws made it difficult for married couples who wanted their divorce to be settled in the most peaceful and straightforward manner. This is because the previous rules adopted a “blaming” basis and therefore couples looking to divorce must either put a blame on one another for the breakdown of their marriage or they must carry out a long-term separation to satisfy the requirements. Inevitably, this caused unnecessary stress and animosity which in turn encouraged potential conflicts between the divorcing parties.
Under the new divorce laws, couples can sign a sole or joint statement of irretrievable breakdown of the marriage to begin the application. This completely removes the need to blame each other or to give reasons for the breakdown of the marriage. Except for certain exceptional grounds, the statement also prevents a spouse from contesting /defending the divorce petition as it serves as a piece of conclusive evidence.
The new rules also introduce a new minimum period of 20 weeks between the start of the divorce application (signing the statement) and the application for the conditional order. When the conditional order is granted by the court, there is another period of 6 weeks before we can apply for the final order of divorce. This change effectively provides the divorcing parties a period to reflect and reconsider their decisions. However when a divorce is inevitable, this also allows the parties time to plan and cooperate on the practical arrangements surrounding the divorce such as financial and children matters.
A change in divorce law has been long-awaited as many would think the previous laws to be outdated, simply increasing animosity and stress in already difficult circumstances. However, the law in respect of financial provision for divorce will remain the same.
We at Chan Neill Solicitors relate to the emotions and stress often involved during the divorce proceedings and our experienced Civil Litigation team can assist in guiding you through every step of the divorce process. Please contact us and we can discuss your best way forward.
What do conveyancing solicitors do as the vendor’s solicitor?
A property transaction involves the buyer's solicitor and the vendor's solicitor, regardless a property is a second hand property, or new built or an off plan unit. We have talked about what a buyer's conveyancing solicitor do acting on behalf of the buyer previously. In today's article, we are focused on the vendor's solicitor's duties.
What do conveyancing solicitors do as the vendor’s solicitor?
The primary role of the seller's solicitor is to provide the information given to them about the property to the buyer's solicitor and support the seller in obtaining any additional information required. These are the main tasks a selling solicitor undertakes:
Draft contracts – Your solicitor drafts the initial legal contract with protocol forms (Property Information Form (TA6), Fixtures and Fittings Form (TA10), Leasehold Information Form (TA7) [Leasehold property only]) to be sent across to the buyer's solicitor.
Responding to enquiries – following the receipt of the draft contract, legal title and your property documents (as above) the sellers solicitor responds to any questions (also known as raising enquiries) the buyers solicitor may have (this is where you'll find out if you are missing documents which can cause delays to your sale). Documents which might be required from the buyers solicitor if relevant like planning permissions & Building Control for any extensions or under pinning, gas safety certificate, electrical certificate, FENSA certificates, asbestos removal certificates and EWS1.
Investigating issues – for some enquiries that can't be easily evidenced, the seller's solicitor needs to complete further investigation to try and satisfy them. The challenge here is if there is limited or no information to provide.
Exchange contracts – once the buyer's solicitor has satisfied their enquiries they agree with the seller to exchange contracts making the buyer legally bound to buy the property. Although buyers can still pull out, this can be financially costly (seller are entitle to rescind the contract and forfeit the deposit ad request any interest accordingly).
Completion – on the day of completion the seller's solicitor receives the money for the sale, discharges the mortgage (if required), pays the estate agent, deducts their fee and then sends the net sale proceeds to you.
Post completion – following completion the seller's solicitor receives the DS1 discharge documents and, when leasehold, settles the sellers liabilities for ground rent and service charges.
Chan Neill property solicitors understand that buying or selling a property can be a stressful time. Our team is well experienced and have stringent protocols in place to streamline the entire process efficiently, providing our clients with peace of mind. Across our team, we speak many languages including Mandarin and Cantonese, Gujarati, Russian, Portuguese, Korean and Spanish.
Chan Neill Solicitors is accredited under the The Law Society’s Conveyancing Scheme Qualification (CQS), which provides a recognition of our residential conveyancing standard and quality and is officially recognised by a range of mortgage lenders which grant us access to their residential mortgage lender panels.
If you have any enquiries regarding residential properties, commercial properties, buying or selling a property or properties owned by a limited company, please contact us. With access to our solicitors at two locations, one in City and one in Mayfair, we cover a very broad spectrum of varying clients needs.
What should I do if I get into a car accident with a uninsured driver in the UK?
What should I do if I get into a car accident with a uninsured driver in the UK?
‘Have you been involved in a road traffic accident that isn’t your fault?’ This is a familiar question that we often hear from adverts. However, what happens if you were involved in a road traffic accident with a driver that was not insuredin the UK? In the absence of the insurers for the responsible party, is it still possible to make a claim and possibly get compensation for your injuries resulted from the accident?
The Motor Insurers’ Bureau are a non-profit-making company set up by motors insurers, who have entered into agreements with the UK government to compensate victims of motor accidents caused by uninsured drivers. The Road Traffic Act 1988 requires that every motor insurer must be a member of the MIB and must contribute to the funding of the MIB. The time limit to submit a claim is the same as road traffic accident claims against injured drivers – within three years of an accident if claiming for personal injury. In the case of injury for children, the three year time limit commences on the 18th birthday.
On the claim form, the MIB will ask you to provide details to learn more about your involvement in the accident, details of the parties involved, details of the accident, details of police involvement, witnesses, details of your claim, and any associated personal injury as a result of your accident.
Once the claim has been submitted to the MIB, you or your legal representatives will be contacted and an investigation will commence. The investigations by the MIB are to establish the facts, confirm the identity of the parties involved, obtain independent reports from motor engineers or witnesses, obtain a police report, and contacting other bodies such as the DVLA, your insurer, or a foreign bureau. If you are claiming for personal injury, the MIB may need to obtain copies of your medical records from your GP and hospital you attended after the accident. The MIB may also need to obtain an independent medical report to assess your injuries caused by the accident.
The MIB will compensate you once a causal link is established between your injuries and the negligence of the driver that you consider responsible.
Many solicitors provide services on a conditional fee agreement (also known as a “no-win-no-fee”) basis, which means you only have to pay for the legal services if your claim succeeds. For example, at Chan Neill Solicitors LLP, subject to conditions and eligibility, we take on no-win-no-fee cases for personal injury claims.
Chan Neill Solicitors LLP is one of the leading law firms in London which houses an established Personal Injury practice. Our experienced team of lawyers can offer specialist advice and provide solutions. If you would like to learn more about our Personal Injury practice, please visit https://www.cnsolicitors.com/practice-areas/personal-injury/.
If you have any enquiries, you can fill in and submit the contact form at https://www.cnsolicitors.com/contact-us/. You can also contact reception at 020 7253 7781.
Immigration Case Studies
Sponsor licence granted for small-sized company in 10 working days.
Background of the case: The company is a small-sized education consulting company with only two full time employees. The company has been established for a long time and it is a stable and mature business. The business operation is relevantly small, and the company’s turnover is low (below the VAT threshold).
Chan Neill Solicitors assisted the company with accumulating the following information and documents to prove the stability of the company's business: business model, business profile and various business activities. In addition to explaining why the company needs overseas employees for its business and justify the necessity of applying for a sponsorship licence.
Based on the client’s needs, expedited service was successfully approved (this service is limited to 10 applications per day) and the company was granted a licensed sponsor under the Skilled Worker Route in 10 working days.
Recently the UK has introduced Global Business Mobility routes and High Potential Talent visas to attract overseas talent. To retain these talents, UK companies are still required to have a valid sponsor licence to provide workers with a work visa.
Tourist visa switched to Dependant visa in 2 working days
Background of the case: Mr Z and his spouse entered the UK as tourists in 2021. Due to the Covid restrictions, Mr Z could not return to his country. We assisted him in applying for an Exceptional Assurance (EA) extension before he must return to his country. An approved confirmation of EA was received with the validity date until July 2022 for Mr Z. In the meantime, we waited for his spouse to switch to a Skilled Worker visa to be granted as she was offered a position in the UK. After his spouse’s Skilled Worker visa was approved, Chan Neill Solicitors began to assist Mr Z’s to prepare for his Dependant as a Partner visa application.
Under the regulations and guidance from the Home Office, applicants are required to provide proof of address with their spouse for a period of two years as evidence that they living together. Mr Z were not able to provide the relevant documents for the past two years due to the following reasons first of all, they have not lived together for a long period of time, secondly previous accommodation documentations were not kept, lastly, they both entered the UK for a short period of time.
Since Mr Z were not able to fulfil the requirement of providing proof of address for the past two years. Alternatively, Chan Neill Solicitors advised Mr Z to compile the recent hotel reservations, travel confirmations and photos to be used as evidence showing they are living together and explained the reasons for Mr Z to apply for switch to a Dependant as a partner visa within the UK on the grounds of international travel restrictions. Mr Z attended his UK visa interview on a Friday and received the visa issuance email in two working days.
Typically, spouse visa or dependent visa applications requires several documentations as proof of relationship. Chan Neill Solicitors are able to advise and assist client’s based on their situation.
Our immigration advisors are focused on problem solving and are highly experienced in dealing with complex immigration issues. If you have any queries regarding immigration and/or visa, please contact us.