Knowledge

A recent Outer House case, Burgerking Ltd v Rachel Charitable Trust considered whether it was reasonable for a landlord to refuse consent to a sublease where the tenant proposed to pay the subtenant an excessive reverse premium. Lord Drummond Young held that where it is proposed that a reverse premium will be paid to a subtenant and the premium is “greatly beyond” what could be said to be compensation for the difference between the passing rent and the market rent, it is not unreasonable for a landlord to refuse consent to the sublease.

Background

The BBC reported this week that the fast food chain McDonalds were piloting a scheme whereby two members of the same family could substitute for each other’s shifts without notifying or seeking the consent of management. The McDonalds suggest this scheme is “the first of its kind” in the UK.

There are various situations where employees might consider themselves having two employers: an employee on secondment to another employer, an employee who is hired by another employer to perform services or an employee who provides consultancy services to another employer.

French Connection Limited has retained the right to use its controversial FCUK trade mark after the UK Trade Mark Registry ruling of 20 December 2005 which rejected claims that the application of the trade mark should be declared invalid as contrary to principles of public morality.

On 13 December 2005, the European Court of Justice (“ECJ”) ruled that Marks and Spencer plc (“M&S”) could claim group tax relief from UK tax authorities in relation to the losses incurred by its European subsidiaries.

The judgement of the House of Lords delivered on 15 December 2005 in
Percy v Church of Scotland Board of National Mission has overturned the
Court of Session, Employment Appeal Tribunal and Employment Tribunal to
hold that for the purposes of the Sex Discrimination Act 1975 a
minister of religion was an “employee”.

The Civil Partnership Act 2004 came into force on 5 December 2005 amid significant publicity, not to mention celebrity. Civil partnership provides a means of legal equalisation for same-sex couples, giving legal recognition to partners of the same sex, who want to enter into long-term interdependent relationships.  The change in the law has implications for property transactions, as well as tax, inheritance and succession, pensions, social security and family law.

The Scottish Executive has published practical guidance for
professionals on the application of the provisions of the Tenements
(Scotland) Act 2004, and certain of the provisions of the Title
Conditions (Scotland) Act 2003 in relation to the management and
maintenance of common property.  Although primarily aimed at
professionals advising owners of flats in tenements, it will also be of
value to those dealing with commercial tenement properties, or those in
mixed use, as the Tenements (Scotland) Act applies to all tenemental

In the recent case of Surrey County Council v Henderson, the Employment Appeal Tribunal found that the level of investigation carried out by the employer following serious allegations against the employee, was not outwith the “band of reasonable responses” where evidence supporting the allegations was not given to the employee prior to his dismissal.

Internet telephones are set to take the global communications industry by storm. Big names like Microsoft, AOL, Yahoo! and eBay are piling into the market and former state-run telecoms providers like BT are also investing.

In the recent case of Willow Oak Development t/a Windsor Recruitment v Silverwood the EAT held that dismissal for refusing to sign new restrictive covenants could be a potentially fair for some other substantial reason (SOSR), notwithstanding that the covenants were unreasonably wide and potentially unenforceable.

In the recent case of Milne v The Link Asset and Security Company
Limited, the Employment Appeal Tribunal (EAT) provided some
clarification as to when suspension of an employee can amount to a
fundamental breach of contract by the employer.

A recent survey conducted by Personnel Today of over 2,000 HR professionals in the United Kingdom has revealed that “fattism” is manifested in the workplace. Of those interviewed, 12% believe that obese workers should not be in client-facing roles, 30% consider that obesity is a valid medical reason for not employing a person and 11% think dismissal by reason of obesity is a fair dismissal. Perhaps most alarmingly, a massive 93% of those interviewed, when faced with two identical candidates of different weights, would employ the “normal

With flu season underway employers will want to take the most appropriate and cost-effective approach to managing short-term sickness absence.  The statistics speak for themselves: 80% of sickness related absences are short-term sickness and it costs the UK economy £10-12 billion annually.  Whilst employers will not be able to control some illnesses, effecting a positive policy that addresses sickness absence can be very beneficial in reducing absence levels.

Offshore workers and their holiday rights are a hot topic in the oil and gas industries. Those of you who read  our firm’s employment e-bulletin updates  will be aware that the Aberdeen employment tribunal is currently dealing with a case concerning the holiday rights of offshore workers.  Offshore employers have recently announced that they are to appeal the employment tribunal’s preliminary decision issued in July this year, which held that the Working Time Regulations could be applied to offshore workers. 

The White Paper on planning in Scotland – Modernising the Planning System – was published by the Scottish Executive in June.  The key aims are to create a viable modern planning system for Scotland that is fit for its purpose, efficient, inclusive and sustainable.  Although the measures contained in the White Paper still need to be formalised in legislation, it is clear that the forthcoming Planning Bill – due to be produced in the current parliamentary session – will have significant implications for developers.  This article highlights those proposals of most significance to the developme

In a somewhat worrying decision for employers, the EAT in the case of Department for Work and Pensions v Hall has upheld a tribunal’s decision that the employer had constructive knowledge of an employee’s disability, even though she had not specifically informed them of it. The EAT found that in dismissing the employee for misconduct, the employer had treated her less favourably on the grounds of her disability and had failed to consider the question of reasonable adjustments.

ACAS has published a guidance booklet on the “Model Workplace” which
suggests how managers, employers and their representatives can make
their workplaces more effective. ACAS has opined that this publication
is “one of the most important that ACAS has produced.”
The Model is entirely voluntary but can be used by employers to
assess the effectiveness of their employment relationships and to
identify areas for improvement.

The recent case of Wiles v. Bothwell Castle Golf Club illustrates the fact that, in Scotland, it is not only pure public bodies that are subject to judicial review.  In particular, sporting bodies acting may also find themselves legally challenged by their members.

In 2004, Elizabeth Weston, was awarded £500,000 for sex discrimination against her former employers, Merrill Lynch. Last month her separate claim for victimisation was dropped and she was ordered to pay Merrill Lynch £150,000 in legal fees.
It has been reported that Weston is now being sued by her former lawyer, Gillian Howard, who represented her in her sex discrimination claim. Howard is claiming for unpaid legal fees. Weston, who used Fox Williams in respect of her second claim, has now appointed a third solicitor, Bankside Commercial in respect of the latest case.

The Employment Appeal Tribunal (EAT), in the case of The Wise Group (TWG) v Mitchell (M), was faced with the issue of an employee who was summarily dismissed in breach of contract and who would have had the necessary one year’s service to bring a claim for unfair dismissal had the contractual disciplinary procedure been followed.

Council Regulation (EC) 6/2002 of 12 December 2001 on Community Designs introduced registered and unregistered design rights covering the entire European Union.  Previously designers had to bring separate court actions under the laws of each country where their designs were being infringed.

Further to our previous bulletin updates in March and May of this year in relation to offshore workers, Union leaders have been successful in the preliminary stage of litigation in respect of holiday pay.
The Working Time Directive, adopted on health and safety grounds, came into force in 1998 and provides UK workers with the right to 4 weeks’ paid annual leave as well as other rights in respect of working hours and rest breaks.

The Office of Government Commerce (“OGC”) and the Scottish Procurement Directorate (“SPD”) have recently issued guidance to public bodies on how to implement a mandatory standstill period following a contract award decision.
The standstill would operate in the period between notifying all bidders of the contract award decision and concluding the contract with the successful bidder.  This will allow aggrieved bidders the opportunity to prevent a contract being entered into if they believe there has been a breach of the procurement rules.