Archives for 2013

What happens to your virtual life after you die?

With so many of us operating smart phones and tablets, and having social media profiles and online accounts, many more of us are leaving behind not only physical and monetary assets, but also a wealth of assets accumulated in cyberspace. Until recently most of this digital data would have been on a physical hard drive but much of it is now distributed through a “cloud”. These are your “digital assets”.

With data located in a “cloud” ownership is not always obvious. This will usually be dictated by the terms of use of the account or service through which the data is stored, to which the user (the deceased) had agreed when they signed up to the account or service. Do you always meticulously read the terms and conditions of use before ticking the box to say “I have read and accepted the terms and conditions”?

Many digital assets may have little or no monetary value, but accounts commonly contain photographs, personal communications and data of a highly confidential and sensitive nature. You may want to pass some of this to loved ones, or be concerned about the security of this data. If nothing is done, will your virtual self continue “living” in cyberspace? There can also be digital assets that are crucial to the running of a business (e.g. a business website) which must be passed on.

If your Will is silent about any digital assets, they are likely to fall into your “residuary estate” (i.e. any assets not specifically bequeathed in your Will). Your executor will have a legal responsibility to deal with these assets, but without your usernames and passwords, it could be impossible to gain control of your digital assets and distribute them. Think about what will happen to your digital assets after death. An obvious solution may be to maintain a list of usernames and passwords for the benefit of your executor. However, in light of the risks associated with identity theft and other cyber-crime one must be vigilant about the security of such data. Some websites do offer termination of your account after a prolonged period of inactivity, or for you to designate who should be able to access your account after your death.

Google will allow users to decide what happens to their data after they die or become inactive online and others will follow. You still need to think about it and go through the process online. Your Will should not contradict such preferences, and ensure that a list of the accounts you hold is stored securely with your Will.

For advice about your Will, visit our Wills, Probate and Trusts department page

Contact Annemarie Swainson and Joshua Eva

 

Disabled employees can be sacked for poor attendance

Some employers think it isn’t possible to terminate the employment of an employee with a poor employment record if they are disabled. That’s not true. A recent case confirms that and illustrates how it can be a fair dismissal.

The employee had a long record of intermittent short term absences based on back problems, chest problems and stress-related conditions which were manifested as anxiety, panic attacks and sleep disorders. His absences were managed under a strict short-term absence policy. Meetings were postponed or held in his absence when he failed to attend. He was given a first written warning under the short-term absence policy and transferred to the employer’s long-term absence procedure. After an Occupational Health report the employee was asked to complete a “stress at work” questionnaire. He never did, despite a reminder. At a final stage meeting under the long-term absence procedure the employer took the view that the employee’s continued absence was unfair to colleagues, the department was under pressure, and there was a possibility the employee might not in fact return to work.

The employee’s claim for unfair dismissal was rejected. The Employment Tribunal and Employment Appeal Tribunal ruled that he had not been subject to discrimination on grounds of his disability. The employer had a duty to make reasonable adjustments but none had been suggested by the employee. It would not have been a reasonable adjustment for the employer to exempt the employee from its absence management policy.

Every case turns on unique facts. In this case the employer had followed set procedure which was strictly applied to all employees. An error in applying the policies did not invalidate them. Even the decision to terminate when the OH assessment said the employee might be ready for a phased return in a couple of months was upheld on the basis this was only a possibility. The EAT noted that the tribunal had found that “this was not a borderline case” as the employee’s absence record was “severely poor”; he had been absent for 100 days in the previous eight months.

The lessons? For employers it is to have policies to manage absences and to apply them consistently. For employees who have a disability it is to challenge the employer with practical reasonable adjustments that could overcome the effect of the disability (EAT) which then places the burden on the employer of justifying why they would not be reasonable or effective.

Equality Act 2010 places an employer under a duty to make reasonable adjustments where a provision, criterion or practice (PCP) applied by the employer, or a physical feature of the workplace, put a disabled person at a substantial disadvantage in comparison with persons who were not disabled. The duty is “to take such steps as it is reasonable, in all the circumstances of the case, for the employer to have to take in order to prevent the provision, criterion or practice, or physical feature, having that effect”.

Jennings v Bart’s and the London NHS Trust UKEAT/0056/12

For advice on Employment Law contact Neil Howlett or Andy Hambleton.

Late Payment of Commercial Debts

In tough times cash is king, which means efficient credit control. The Late Payment of Commercial Debts (Interest) Act 1998 has always been a useful tool. It gives a statutory right to interest of 8% over the current base rate, plus a right to charge a fixed sum for your costs of recovery (currently £40 for a debt of less than £1,000). These are good rates. You don’t have to go to court to get them. You don’t even have to have this written into your Terms & Conditions – if you have a lower rate of interest in these you may not be able charge the Late Payment Rate. Businesses are entitled to claim interest and charges when a debt remains unpaid after the date specified on the contract, or in the absence of a contract, 30 days after the delivery of the goods or service.

From 16th March 2013 the Late Payment legislation has been reinforced. For contracts entered into on or after that date with non-public authority purchasers, there will be a maximum payment period before Late Payment Interest of up to 60 days. Where the purchaser is a public authority purchaser, the maximum payment period is 30 days. These periods run from the later of the receipt of the supplier’s invoice, or the receipt of the goods and/or services. It is possible for the parties to agree a longer period or a trigger based on the purchasers confirmation the goods and/or services are in accordance with the contract, but these variations must not be ‘grossly unfair’ to the supplier. The aim of these changes is to put pressure on payers. The intention is that most will abide by these deadlines and not take the risk that seeking longer terms may be found to be unfair.

Also, where the supplier’s actual costs in recovering the debt exceed the fixed charge sums the supplier will have a right to recover the reasonable costs of recovering any debt.

You can find the new regulations and helpful guidance on operating them, including online interest calculators, and templates at Pay on Time

Finally, for those who wonder about the impact of the European Parliament and Council, the recent changes implement EU Directive 2011/EU.

This note is for information only, the Late Payment regulations have exceptions and you should look at the guidance or take advice before using them.

For further help contact Neil Howlett in Frome or Andy Hambleton in Wells

The value of a professionally drafted Will, and of keeping it up to date

The widely publicised case of Ustinov v Ustinov highlights the disastrous consequences for the family of a deceased person who has failed to maintain a valid Will. The family of Peter Ustinov, who died in 2004 in Switzerland, have become embroiled in lengthy and highly expensive litigation. Although Ustinov had made a Will in the 1960’s, it was written in pencil and found by the Swiss Courts to be invalid. As such, Ustinov’s multi million pound estate passed via Swiss law to his third wife. His children have sought to obtain a share of his estate, but so far their efforts have proved fruitless, and having spent many thousands of pounds in legal costs, Ustinov’s son Igor is reported to be close to bankruptcy. Aside from the financial implications for Ustinov’s offspring, the strife and ill feelings experienced by the family are a salutary reminder of the importance not only of having a Will prepared by a properly qualified professional, but also of the importance of reviewing one’s Will regularly and ensuring that it continues to reflect one’s wishes, as circumstances change over time.

With a simple Will prepared by one of our specialist solicitors costing only £228 (including VAT), and an update to your existing simple Will from as little as £60 (including VAT) you may be surprised at how inexpensive and easy it is to ensure your family will not inherit a legal nightmare in the same way as the Ustinov family.

To read more about the Ustinov case, click on the following link to the Independent Newspaper article:

http://www.independent.co.uk/news/uk/home-news/ustinov-vs-ustinov-the-ruinous-legal-battle-tearing-a-family-apart-8473938.html

If you would like to make a Will or update your Will, see our Wills, Estates and Trusts page:-

Wills, Probate + Trusts

Clearing snow and ice – is it dangerous?

Of course it is – you might slip over. However, if you are prepared to take that risk and do it sensibly you shouldn’t be deterred from being helping your community by a fear of being sued. There is simple guidance from the government.  If it is your property you may have a liability if you don’t clear it.

The Institution of Occupational Safety and Health, the largest health and safety membership organisation in the world says, “As a general rule it’s sensible for firms to consider the risks and take reasonable steps to prevent accidents from happening. If this means gritting outside the boundaries of your workplace, then it’s better to do that than to have people slipping over or involved in car crashes on your doorstep.”

If you want to assess the risk it’s always worth knowing your enemy. After the 2009 snows a firm of Claimant Personal Injury Solicitors doing the dreaded ‘No Win No Fee’ claims put out a leaflet about snow and ice claims which described the possibility of any claims against people clearing the highway voluntarily as an “urban myth”.

In legal terms there is a theoretical basis for a claim in Negligence, but it would only be sustainable is you created a new risk. Following the government guidance should ensure you don’t. Even if you did the Compensation Act 2006 says that a court may have regard to whether “imposing an obligation to take steps might prevent an activity which is desirable from taking place (either at all, to a particular extent, or in a particular way), or might discourage persons” from activities that were positive. Clearing snow and ice is exactly the kind of activity that is aimed at.

In Frome the Town Council has taken a pro-active approach and has a Snow Patrol.

This post is provides information not legal advice on any particular situation on which you should act.

Contact Neil Howlett or Andy Hambleton

Will Aid 2012 – Solicitors Draft Wills for Charity

W&P Dept Photo

During November 2012 Annemarie Swainson, head of Harris & Harris Solicitors Wills and Probate Department and Joshua Eva, an Associate in that department, raised an estimated total of £1,345 by participating in Will Aid, the UK’s leading charity will-writing scheme.

Will Aid offers an opportunity to make or update a Will in return for a donation to help people in need in the UK and all over the world and supports nine well-known UK charities: ActionAid, Age UK, British Red Cross, Christian Aid, NSPCC, Save the Children, Sightsavers, SCIAF (Scotland) and Trocaire (Northern Ireland).

As part of the Will Aid campaign Harris & Harris drew up basic Wills for local people without charging their usual fee. In return for this service the clients made a donation to Will Aid. This year saw a very busy and successful campaign during which 15 Wills were made for local people, giving their families the security of a properly drafted Will as well as the opportunity to support popular charities.

Joshua Eva said, ‘We are delighted to have made another significant contribution to Will Aid, and equally delighted at the continued public interest. We would like to thank all of our clients who took part for their generous donations.’

 The money raised by Harris & Harris will be added to the nation-wide total, currently standing at £1.5m, which will be put to work to make a real and lasting difference to vulnerable children, families and older people in the UK and around the world.

Eweida – Did the European Court get it right ?

There has been a lot of publicity about the European Court of Human Rights decision in Eweida & Others v UK. The principles are quite simple; the key to understanding the decisions is the distinction between the right to hold religious faith and the right to display that faith.

Article 9 of the European Convention on Human Rights provides that there is an absolute right to freedom of thought, conscience and religion. However the right to manifest one’s religion or beliefs is qualified. This right is subject to ‘only such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health, or morals, or for the protection of the rights and freedoms of others’. States have a ‘margin of appreciation’ for the way in which qualified rights are interpreted and the ECHR will not interfere with a decision that falls within that margin.

Two of the Applicants had sought to wear visible crosses, in breach of their employers’ uniform policies. That was a qualified right. The Court accepts that a manifestation of religious belief for the purposes of Article 9 need not be “mandated” by the religion but only needed to be “intimately linked”.

Ms Eweida worked for British Airways and wanted to wear a discreet cross visibly, having worn one under her clothing for some time. The Court held that British Airways’ desire to project a consistent brand image wasn’t sufficient, as there was no evidence that the wearing turbans and hijabs by other employees had any negative impact. In fact British Airways had recognised that in 2007 and changed their policy to allow it.

Ms Chaplin worked as a geriatric nurse. In her case the Court held that although her being permitted to manifest her religion must weigh heavily in the balance, the reasons put forward by her employers for asking her to remove the cross outweighed them. These were the protection of health and safety on a hospital ward.

The other two applicants wanted the ECHR to rule that their manifestation of their religious beliefs required their employers change their job descriptions where their beliefs conflicted with some of the duties they were normally required to perform. Ms Ladele was a registrar, whose employer required her to perform civil partnership ceremonies. They attempted to accommodate her but rota changes had created problems. Mr McFarlane had taken a job providing counselling services for Relate, but was unwilling to provide counselling for same sex couples.

Both of their applications failed. The ECHR noted that their employers’ justification for refusing their requests was the provision of non-discriminatory services, so departures from those required serious reasons by way of justification. In Mr McFarlane’s case they also took into account that he had been aware of the requirement about which he was objecting before he took the job but rejected the argument that accepting the job absolved his employers of any responsibility to consider reasonable accommodations.

The ECHR has left the decision to employers. If an employer is reasonable and can explain why a particular policy is necessary it is likely to be upheld. Employers know they should try to accommodate religious beliefs in the workplace and the four cases provide examples of the issues they are likely to face.

Many commentators think that the ECHR has reached the only decision it could. To have done less would have laid it open to complaints of failing to uphold rights granted by law. To be more prescriptive would have opened the door to many more applications, and to complaints that it was interfering in decisions at a level that should be left to domestic courts.

The principle was set out by South African judge Albie Sachs:
“The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. Such a society can cohere only if all its participants accept that certain basic norms and standards are binding.”

Residential Tenancy Deposits – Avoid Expensive Mistakes

Landlords of residential tenants could be forgiven for being confused about what they have to do to meet the requirements of the Tenancy Deposit Scheme.   When the original statutory scheme was introduced it was then undermined by cases which allowed landlords to virtually ignore it.   Some landlords and agents have got into the habit of ignoring the 30 day limit in the belief that they could put things right later.   That isn’t what Parliament intended, and the courts will not allow it in the future.

Landlords of residential tenants must now do all of the following within 30 days of the start of the tenancy:-

  • Protect the deposit, usually by putting it into one of the tenancy deposit schemes.
  • Serve a notice containing prescribed information, which includes the details of the scheme, how it can be contacted, and what the landlord may deduct from the deposit, plus, usually, the leaflet provided by the scheme.

There are serious penalties for landlords who do not comply.   If the landlord does not serve the notice on time, the court can order the landlord to pay the tenant a penalty of up to three times of the amount of the deposit.   The Court of Appeal has recently ordered a landlord to do that, and that case will be binding on the lower courts.  Landlords who miss that deadline must assume that the starting point will be that they will pay three times the deposit as a penalty.

If the Landlord has not protected the deposit in time the consequences are potentially more expensive.   Any s.21 Notice Requiring Possession is ineffective, as are any possession proceedings based on it.   That cannot be put right later unless and until the Landlord has paid the deposit back to the tenant and then served another Notice.   As a s.21 Notice normally has to give at least two months notice, that can seriously delay the ability of a landlord to get rid of a bad tenant.   Bad tenants are why landlords take deposits. If a Landlord starts possession proceedings based on a defective notice, they will not get possession, be ordered to pay a penalty and the tenant’s legal costs, and will have to start all over again – without the benefit of a deposit.

If you are considering letting residential property please contact Kathryn Lander.

If you have a problem with a residential tenancy please contact Neil Howlett or Andy Hambleton.