Employment law update: early conciliation

The Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 comes into force on the 6th April 2014 introducing compulsory “early conciliation”, also known as “pre-claim conciliation”.

From 6th April 2014 Claimants must contact ACAS before issuing a claim in the employment tribunal. There is no actual requirement to engage in conciliation however ACAS will offer conciliation.

The rules can be summarised as follows:-

1. Before issuing a claim in the employment tribunal Claimants must either fill in the early conciliation form (this can be done online or by post) or telephone ACAS. Initially, the only information that the Claimant has to give is the Claimant’s name and address and the employer’s name and address.

2. ACAS must then make reasonable efforts to contact the Claimant and if the Claimant consents they must make reasonable efforts to contact the employer.

3. The parties then have one calendar month to try and reach a settlement (although this may be extended by up to 14 days if the parties consent).

4. If a settlement is not reached or the ACAS conciliation officer considers that a settlement is not possible, ACAS must issue an Early Conciliation Certificate. Only then may the Claimant submit claim in the employment tribunal.

5. The Early Conciliation Certificate will contain a certificate number which the Claimant will need to insert on the ET1 claim form.

What about time limits?

The usual time limits stop during the early conciliation period and if the usual time limit for issuing a claim would otherwise have expired during the early conciliation period, the Claimant benefits from a month’s extension of time from the end of the conciliation period.

Hastings & Co Solicitors specialise in all aspects of employment law including disputes. For further advise or assistance please telephone 01245 835 305 without any obligation.

Disclaimer: this blog is only intended to give a brief overview of the law and is not intended as a substitute for independent legal advice.

Cooling off rights

If goods are faulty and you act quickly enough you will usually have the right to reject them and get a refund. However, you are not always entitled to a refund just because you change your mind. Having said that there are a few situations where you do have cooling off rights.

Check the Seller’s returns policy

Some retailers have a no quibble returns policy if the goods are returned within a certain time limit. So, if you do change your mind it’s worth checking the seller’s terms and conditions to see what their policy is.

The Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008

These regulations apply to contracts between businesses and consumers which are made in the consumer’s home, or place of work or somewhere else away from the trader’s business premises. The rules apply if the contract is made whilst the trader is in your home, or place of work. So, it wouldn’t apply if the trader later sends you a written quotation which you later accept on the telephone or in writing.

Usually there is a 7 day cooling off period however some contracts are excluded so the rules need to be checked carefully.

The Consumer Protection (Distance Selling) Regulations 2000

The Distance Selling Regulations apply to contracts made by consumers by mail order, online or over the phone. There is a 7 day cooling off period although once again some contracts are excluded so the rules need to be checked carefully.

Consumer Credit Act agreements

Consumers usually get a 14 day cooling off period when signing a credit agreement.

Hastings & Co Solicitors are a niche solicitor’s practice in Chelmsford specialising in dispute resolution.

T. 01245 835 305.

Disclaimer: this blog is only intended to give a brief overview of the law and is not intended as a substitute for independent legal advice.

 

How to make a claim in the small claims court

Strictly speaking there isn’t a “small claims court”, however, claims for less than £10,000 (before 1st April 2013 it was £5,000) in the County Court are usually allocated to the small claims track and these are often referred to by the public as the “small claims court”.

One of the key features of the small claims track is that only limited legal costs are usually recoverable from the opponent. This does not mean that you cannot instruct a solicitor to act for you, however, it does mean that you may not be able to recover all of their charges if you do. Because of this, a lot of claimants and defendants in the small claims track are unrepresented (we call them litigants in person).

This is a step by step guide to starting a small claim.

Step 1 is to try and resolve your dispute before issuing legal proceedings. This can be done by sending the other person a “letter before claim”. The letter should set out what you are claiming and why.

Step 2  is to fill in an N1 Claim Form. The form is fairly self explanatory. A few tips: (1) make sure you put the correct name and address for the defendant, for example, is it Bob the Builder or Bob the Builder Limited? If your contract was with Bob the Builder Limited then you can’t sue Bob the Builder personally. (2) The amount of the court fee is determined by the value of the claim – see court form EX050. (3) You will need to state on the form what your preferred court is. In Essex, there are County Courts in Romford, Chelmsford, Colchester, Southend and Basildon.

Step 3 is to send 2 copies of the N1 Claim Form to the following address:

County Court Money Claims Centre
PO Box 527
Salford
M5 0BY

You will need to enclose a cheque to cover the court fee. The cheque should be made payable to “HMCTS” (which stands for Her Majesty’s Courts and Tribunal Service). For every additional defendant send an extra form eg if there are 2 defendant send 3 forms.

Step 4. Within about 7 days the court should “issue” the claim and send it to the defendant by post. The defendant will then have 14 days to file either an acknowledgement of service or a defence. If they file an acknowledgement of service they will then have a further 14 days (ie 28 days in total) to file their defence.

Step 5. This will depend whether the claim is defended or not. If no defence or acknowledgement of service is filed then you can request judgment in default. This is done by completing the Request for Judgment form at the bottom of the Notice of Issue. This is a form which the court sends the claimant once the claim has been issued.

If the claim is defended then the court will send both parties a Directions Questionnaire to complete and return to the court.

Step 6. Once the court has the Directions Questionnaires back it will make “directions”. For small claims the case will usually be listed for a hearing lasting about 1.5 hours and usually the parties would be required to exchange witness statements and documents no later than 14 days prior to the hearing. The whole process usually takes 3-6 months.

Hastings & Co Solicitors are experts in litigation and disputes based in Chelmsford, Essex, acting for clients throughout Essex.

T. 01245 235 835

Disclaimer: this blog is only intended to give a brief overview of the law and is not a substitute for independent legal advice.

What happens if I buy stolen goods?

If you are unlucky enough to buy stolen goods, the law will not come to your rescue, even if you have acted in good faith and did not know that the goods were stolen. This principle applies to all stolen goods including cars.

So you buy a car and it turns out to be stolen. The law returns the car to the rightful owner. However, the innocent purchaser will have a claim against the person that sold the stolen car to them. And so it goes back up the chain.

Section 21(1) of the Sale of Goods Act 1979 says:

“Subject to this act, where goods are sold by a person who is not their owner, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.”

Hastings and Co Solicitors specialise in litigation and dispute resolution.

Tel: 01245 835 305

Disclaimer: this blog is only intended to give a brief overview of the law and is not intended as a substitute for independent legal advice.

Legal Expenses Insurance

A lot of people have Legal Expenses Insurance as part of their home or car insurance. Sometimes it is automatically included as a feature of the policy. Sometimes it is an extra that has to be specifically selected. For certain types of legal problem it is always worth checking to see whether cover is in place.

The way to find out if you have cover is to check your insurance policy schedule and somewhere it will say “legal expenses insurance” or it might say “family legal protection”. It will then say “included” or “not included” as the case may be. Or it might say how much the premium is to indicate that you do have cover.

If you do have cover, then your insurance policy terms and conditions booklet (usually a glossy pamphlet) will tell you what types of dispute it covers and any conditions attached to it. Most Legal Expenses Insurance policies will cover personal injury claims and employment disputes. Some will also cover general contractual disputes.

The terms and conditions booklet will also tell you how to claim on the policy. There will be a telephone number and if you phone it they will refer you to one their “panel solicitors”. In our experience, the panel solicitor is rarely local and so the client does not get to meet their solicitor in person. In order to get on the panel in the first place, the solicitor has probably paid a referral fee (in the case of personal injury claims) or agreed much lower rates than usual (in other cases). The solicitor is then forced to keep their costs down and they often achieve this by using paralegals to do the work.

The good news is that you do not have to use the solicitor nominated by your Legal Expenses Insurer. You are free to choose your own solicitor however they will not tell you this. If we agree to take your case on, and if you have legal expenses insurance, we will contact your legal expenses insurer for you and ask them to pay our fees.

So in the first instance, we would encourage you to speak with us first about your legal issue and we will check to see if you have legal expenses insurance to pay our fees.

Hastings & Co Solicitors specialise in personal injury claims and employment law. Telephone 01245 835 305 for further advice or assistance.

Disclaimer: this blog is only intended to give a brief overview of the law and is not a substitute for independent legal advice.

Cohabitation and the Trusts of Land and Appointment of Trustees Act 1996

The Trusts of Land and Appointment of Trustees Act 1996 is an important piece of legislation for unmarried couples and other people who jointly own property together or who live together. This includes for example gay couples that have not entered into a civil partnership and relatives that live together, for example, siblings living together and children  living with their parents.

Where the property is held in joint names the law presumes that it is held equally (i.e. 50/50 where there are 2 owners).

Sometimes, for whatever reason, the property is held in one person’s name only. However, it is possible for someone else to also have an interest in the property.

Section 14 of the Trusts of Land and Appointment of Trustees Act 1996 gives the courts power to determine who owns a property and what shares they have. It also gives them the power to make an order for sale of the property. These are often referred to by lawyers as TOLATA claims.

It was my experience after the last recession, that couples would often do nothing after separating especially if there was little or no equity in the jointly held property. However, as property prices increased it  became worthwhile to make a TOLATA claim. A lot of property owners became very disappointed to learn that their ex-partners still had an interest in their property and that because the property had increased in value it would now cost a lot more to buy them out. This was often many years after their ex-partner had left the property. Unmarried couples splitting up should get advice early on. 

It is adviseable for anyone thinking of making an application, or faced with an application, to get advice from a solicitor. Liam Hastings specialises in TOLATA claims and litigation generally. Please telephone 01245 835 305 for advice.

Disclaimer: this blog is intended to give a brief overview of the law and is not intended as a substitute for independent legal advice.

Employment contracts checklist

Strictly speaking employers are not required to give their employees written employment contracts however they are required to give each employee a written statement of particulars of certain important terms within 2 months of the employee commencing employment (section 1 of the Employment Rights Act 1996).

The written statement should contain the following information:-

  1. The names of the employer and employee.
  2. The date when the employment began.
  3. The date when the employee’s period of continuous employment began.
  4. The scale or rate of remuneration or the method of calculating remuneration.
  5. The intervals at which remuneration is paid (eg weekly, monthly or other specified intervals).
  6. Any terms and conditions relating to hours of work.
  7. Any terms and conditions relating to (a) holiday entitlement (including bank holidays), (b) sickness and sick pay and (c) pensions and pension schemes.
  8. The length of notice required by the employer and the employee to terminate the contract of employment.
  9. Job title or brief job description.
  10. Where the employment is not intended to be permanent, the period for which it is expected to continue.
  11. The place of work or, where the employee is required or permitted to work at different places an indication of that and the employer’s address.
  12. Any collective agreements which directly affect the terms and conditions of the employment.
  13. Where the employee is required to work outside the UK certain further particulars.

What happens if I do not give my employee written particulars or an employment contract? This is not a standalone right so that the employee cannot bring a claim simply for not having written terms. However, if the employee brings another type of claim, the employee can also claim compensation for not having written particulars of between 2 and 4 weeks pay. More importantly however a well drafted employment contract will contain a number of important terms which are there for the benefit of the employer. It is therefore in the employer’s best interests to ensure that all employees have written employment contracts. Employers should consider including the following clauses in their contracts (in addition to the clauses mentioned above):-

  • Restrictive covenants. This is a must for sales staff and other key staff to reduce the risk of employees leaving and poaching customers or staff or setting up in competition.
  • A clause entitling the employer to put the employee on garden leave during their notice period.
  • A clause entitling the employer to make a payment in lieu of notice.
  • A mobility clause entitling the employer to move the employee’s place of work.
  • A clause reserving the right to make deductions from wages.

It is also advisable to have a handbook containing various policies and procedures. The handbook will often contain the following types of policies and procedures:-

  • Disciplinary and grievance procedures.
  • Detailed sickness policy.
  • An internet / IT policy.
  • A car policy.
  • An expenses policy.
  • An equal opportunities policy.
  • A retirement policy.
  • A harassment policy.
  • Health and safety policy.
  • Maternity/adoption/paternity/parental leave policy.

The employer should think about what rules and procedures they want in place whether it be a provision in the employment contract or a separate policy.

As dispute lawyers we are mindful that a significant number of disputes (and not just employment disputes) are caused by uncertainty. Parties enter into relationships and the expectations are unclear. If the parties at the beginning set out what they expect from each other they are less likely to fall out at a later date.

Hastings and Co Solicitors specialise in all aspects of employment law. For further advice please telephone 01245 835 305 without any obligation.

Disclaimer: this blog is only intended to give a brief overview of the law and is not intended as a substitute for legal advice.

Commercial Agreements

These are some of the commercial agreements we’ve drafted recently for our clients:-

  • Terms and Conditions of sale for an ecommerce business.
  • Terms and Conditions for a clothing supplier.
  • Terms and Conditions for a telemarketing company.
  • Licence Agreement between a marketing company and a distributor.
  • Introducer’s Agreement for a company wishing to accept referrals from independent introducers.
  • Terms and Conditions for an estate planning company.
  • Terms and Conditions for a consultant.
  • Consultancy Agreement for company wishing to appoint self employed consultants.
  • Terms and Conditions for a social media company.
  • Deed of Dissolution for a partnership.

Hastings & Co Solicitors specialise in drafting different types of commercial agreements. Telephone 01245 835 305 without obligation to obtain a fixed quote.

Debt collection: Hastings & Co recover £20,000 for building subcontractor

We recently acted for a subcontractor that was owed in the region £20,000 by a major building contractor. There were various unpaid invoices going back 12-18 months.

Upon being instructed we immediately issued a claim in the County Court. We did not need to send a warning letter as the debtor had already had sufficient warning. Within 28 days our client was in receipt of a cheque that was sufficient to cover the full value of the debt. together with late payment interest at the rate of 8.5% per annum. In addition, we recovered the court fee and sufficient compensation pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 to cover our costs.

Hastings and Co Solicitors specialise in debt collection and litigation. Call 01245 835 305 for a consultation without any obligation.

Settlement Agreements

Until 29th July 2013 settlement agreements were known as compromise agreements, however, they are essentially the same thing with a new name.

A settlement agreement is a binding agreement between an employer and an employee. The employee usually agrees to accept a sum of money in return for agreeing not to bring certain claims against the employer in the Employment Tribunal or other courts. Essentially the employee is signing away his or her rights.

Sometimes an employer will ask an employee who is being made redundant to sign a settlement agreement. Whilst redundancy is potentially a fair reason for dismissal it can become an unfair dismissal if the employer does not follow the correct procedures. Some employers like the assurance of knowing that the employee will not be able to bring a claim for unfair dismissal, even if the claim has no merit. Other times, there is a difficult history between the employee and employer and hence an even greater reason for the employer to end the relationship on agreed terms.

One of the key features of a settlement agreement is that the employee must receive independent legal advice from a qualified adviser (usually a solicitor) before the settlement agreement is signed. The employer usually pays for the employee to be advised and usually the settlement agreement says how how much the employer is willing to contribute toward the cost.

Since the recession started I have advised more than a hundred employees in connection with their settlement agreements. I also act for employers and so have experience seeing it from both sides of the fence.

Liam Hastings specialises in employment law and civil litigation. For further information please telephone 01245 835 305 without any obligation.

Disclaimer: this is only a brief overview of the law and not intended as a substitute for legal advice.