Fit Note (Statement of Fitness for Work)

The new 'Fit Note' (Statement of Fitness for Work) was introduced on 6th April, replacing the existing sick note signed by Doctors for employees who are absent from work due to sickness reasons. The new form enables doctors to provide a 'may be fit' statement, if they think a patient's health condition may allow them to work if they get suitable employer support (such as altered working hours, amended duties or workplace adaptations). Where an employee is too ill to work, the doctor will continue to advise this, as with the old sick note.

As with the previous sick note, the fit note is not required until after the seventh calendar day of sickness (self certify for first seven days) and the information on the note is advice to the employee, but is not binding on the employer. It confirms there is no change to Statutory Sick Pay arrangements or to employers' obligations under the Disability Discrimination Act.

The aim of the Fit Note is to ensure that individuals and employers are better informed about when and how it is appropriate to support someone back to work. The option for phased returns to work and Doctor's advice is designed to get some people back to work quicker, especially if the sickness absence is for a long period. There is strong evidence that long periods out of work are associated with poor mental and physical health, increased use of health services and poverty. The longer someone is off work, the lower their chances of getting back to work. Work has also been shown to have therapeutic value and is generally good for physical and mental health and well-being. The old format of the sick note does not help doctors to provide information about fitness for work to patients and their employers. Changing the form is designed to enable doctors to provide better advice to their patients about the effects of their health condition and how they might be able to return to work while they recover.

Concerns exist about the change, however, particularly that GPs may not have a detailed enough knowledge of the workplace to be able to make realistic recommendations for changes. Similarly, many employers lack the occupational health support to act on a doctor's recommendations. Employers now need to consider implications such as making decisions on employees returning to work in various circumstances, and issues such as pay for agreed phased returns/contractual sick pay.

Malina Gupta and Stephen Blake


World Intellectual Property Day

Today is the day designated by the World Intellectual Property Organisation as World Intellectual Property Day.

For more information see http://www.wipo.int/pressroom/en/articles/2010/article_0010.html


What is the main barrier to making first contact with Lawyers?

Vote and comment on my poll at http://polls.linkedin.com/poll-results/84803/vyilq. All comments are appreciated as this will go a long way to moulding our services in the future.


A New Service to Hertfordshire Businesses

Dear All

My firm, like your business, is a member of the Hertfordshire Chamber of Commerce & Industry. I am pleased to tell you that we have recently accepted an invitation from the Chamber to become Patron Members. Since accepting the invitation we have considered how we might use Patron Membership for the benefit of businesses within the County.

We have resolved to extend our role as facilitators for businesses in Hertfordshire, in particular for those who are members of the Hertfordshire Chamber of Commerce. Although we continue to assist local business development in our usual ways, for example hosting breakfast meetings with topical speakers, we should like to offer something that your business might find useful in these difficult times. For an initial 3-month period we are offering a free consultancy service for Chamber Members who may need general advice relating to their businesses (which may not necessarily be legal advice) but are not sure whether they would benefit from it or where to find it. Our scheme enables you to meet with someone here (usually a Director) free-of-charge to discuss problem(s) that your business faces. Whilst we may not always be able to assist you ourselves we aim to point you in the right direction with a view to your alleviating those problems currently affecting your business. The Chamber has provided to us a list of professional and other advisors who might be able to assist (on a similar basis) with any problems that we identify with you at our meeting.

If you would like to book a free half hour appointment, please contact Georgina Meadows at our Hertford office on 01992 558411 or email her on georgina.meadows@breezeandwyles.co.uk. Please note that during the initial period the meeting will be held on a Thursday afternoon from 4.00 pm.

For more information about our breakfast meetings, or to subscribe to our free monthly Employment Law Update "ezine", please visit our website www.breezeandwyles.co.uk. In addition feel free to visit our "Lonely Business Owner" blog available here

We look forward to helping you do business.

Yours sincerely

Peter Tunstill, Senior Partner
For and on behalf of
Breeze & Wyles Solicitors LLP


Home 1

The Great Radwinter to Paris Bike Ride 2010

From April 3-7 2010, I rode to Paris from my home village of Radwinter in North West Essex with Murray Fraser, another Director of Breeze and Wyles Solicitors LLP, Simon Berry, a Director and owner or Early Doors Limited and his fourteen year old son Tom Berry. Preparation was mixed to say the least varying from 200 miles worth of training to 1500 miles between us. The charitable cause being supported was that of the local church. Significant recent changes have seen the loss of all but one of the focuses of the community but the church remains. However, due to the lack of funding the parish church, St Mary the Virgin, is failing to meet its main financial commitment and there is a very real possibility that the church will see diminishing finances to meet its day to day running. This may leave the PCC at some time in the future with the unenviable decision to restrict the amount that the Church is being used. In order to try to postpone or remove this decision I decided to try to raise funds so that the balance of capital within the accounts could be increased to a level that ensures that the decision is postponed.

As regards the journey I can confirm that we completed the journey despite many problems along the way including, 15 punctures and a Sea France strike making it impossible for us to make the trip from Dover to Boulogne.

Day One (75 Miles Radwinter to Chislehurst)

Leaving the Parish church at 9.00 am we travelled from Radwinter to Stanstead Abbotts via Rickling, Farnham and Much Hadham stopping for lunch at Ware for lunch. We then joined the Lea Valley cycle path taking us from Ware to the Greenwich footway under the Thames. From the Cutty Sark we rode to Chislehurst arriving shortly before 8.00 pm. During the day we suffered six punctures and the failure of a pannier support that required bicycle shop repairs in Ware thus meaning a detour to Ware. We then spent the evening repairing the punctured inner tubes.

Day Two (78 Miles Chislehurst to Calais)

Starting the day following cycle route 21 it soon became clear, with further puncture problems, that progress would be too slow to make Dover and a crossing in the evening, whilst the route was scenic it zigzagged across the Kent countryside. So at about 11.30 am we joined the A20 and our speed started to increase. However, the A20 ends in Folkestone (from where nowadays few if any ferries can be found to take you to France) rather than Dover. Arriving in Folkestone we needed to make the short but circuitous journey between the two towns but found ourselves lost until we located the Alkham valley. We eventually arrived in Dover at 6.50 pm and caught a ferry to Calais at 7.45 pm arriving at 10.15 pm local time. Fortunately for us the Hotel Mercure in Calais centre had spare rooms. During the day (Easter Sunday) we managed to find an open Halfords in Maidstone and replaced the worst offending tyres with Kevlar (Puncture proof) versions. I am still unable to work out how we found this place open on Easter Sunday but am extremely grateful that we did.

Day Three (56 Miles Calais to Hesdin)

Having arrived in Calais rather than Boulogne we had now added approximately 30 miles to the journey. In addition, what had previously been a westerly wind now turned to a 20 mile an hour head wind slowing progress dramatically. Moreover, to travel inland requires a cyclist to climb some pretty steep hills. Unfortunately, I was passed the map and given the responsibility for the route for that day. Suffice to say that we climbed many more hills than was needed with the obvious impact that this had on our rate of progress. Eventually we arrived in Hesdin at 6.45 pm having travelled through Les Sept Vallees [my mistake on map reading as I told the other riders that there was only a few hills between Calais and Paris – ooops]. All of the obvious Hotels were full/closed but upon asking a local in our pigeon French if they knew of any hotels in the vicinity that might be open the local pointed to the nearest building and clearly disturbed by our massacre of the French language said in perfect English Do you mean here? My Hotel. It transpires that the Hotel was closed for bereavement reasons but the owner taking pity on us decided that we would be little problem to them in their difficult time.

Day Four (93 Miles Hesdin to Beauvais)

Leaving at 8.30 am we departed Hesdin on an extremely busy road towards Abbeville. It became clear almost immediately that our safety was in jeopardy every time a lorry passed us, so about three miles out of the town we deviated onto smaller D class roads. Anticipating a long day as we tried to catch up both the extra 30 miles that the crossing to Calais had created and the shorter riding time of the previous we did not expect to have to ride into the night. However, on reaching Crevecoeur where we hoped to finish our day we found that the only hotel in the town was full and the owner somewhat unhelpful. A decision was then taken to attach our lights and make the 15 miles journey from Crevecoeur to Beauvais. Riding in a block of four rather than strung out (my lights had failed but I had brought with me a miners lamp than could be fitted to my forehead) we doubled our rate of progress, noticing that the wind was now almost negligible, making Beauvais inside the hour. Arriving at Beauvais at 10.30 pm we eventually found a Hotel that would take us at about 11.10 pm.

Day Five (78 Miles Beauvais to Paris)

We started the day at 8.15 am heading towards Paris on the N1. Our average speed was quite high with the team maintaining progress of about 28 KPH average. Our plan was to try to take the most direct route into Paris passing through Chambly and then down into Saint Denis. A fine plan in theory but the practice was something completely different. Our aim had been to arrive at the Eiffel Tower at about 5.00 pm but in the event this did not happen until about 8.00 pm as we tried to locate a D Class road to take us into the immediate outskirts of Paris and when we eventually found one (D928) to find it again when we lost it in Taverny. Before moving on to the Eiffel Tower we needed to find a hotel near the Gare du Nord (and therefore the Eurostar) succeeding eventually after much negotiation in finding two rooms in a rather seedy 1* Hotel. We then travelled to the Eiffel Tower and took our photographs among all of the other tourists.

Thanks

I wish to thank my fellow participants but in particular Tom who despite having being diagnosed with type 1 Diabetes some years ago was by far and away the strongest cyclist among us. His energy kept us all going and I hope that he appreciates what he has achieved. I would like to thank all those people who have donated money to the Church and will report how much we collect when I have a final figure, this being delayed as funds continue to be received. In addition, I would like to thank Newdales in Saffron Walden for all of their advice and assistance prior to the trip. I must also thank Alan Drury of adsignwriting for preparing the firms shirts at such short notice. Finally, none of this would have happened without the support of all of our families.

As a final note, donations continue to be received and if you wish to donate to this cause please let me have a cheque made payable to Radwinter PCC at my office.

Breeze and Wyles Solicitors LLP
11 Ducketts Wharf
South Street
Bishops Stortford
Hertfordshire CM23 3AR

Brendan OBrien


Private Sector Housing: Terminating a Tenancy under s21 of the Housing Act 1988

This seemingly, relatively simple piece of legislation can cause problems for both Agents and Landlords and a few simple precautions may avoid problems with the courts and as a result disgruntled Landlords.

S21 allows a landlord to regain possession of their rented property when a tenancy agreement has come to an end by giving two months notice to the tenant.

Proceedings can usually be issued using the Accelerated Possession Procedure under Part 55 of the Civil Procedure Rules. Using the Accelerated Procedure means that all the documentation is lodged with the court and so long as it is all in order and the tenant does not dispute any of the documentation and is unable to provide a good reason (e.g. special hardship) why the landlord should not be given an Order for Possession, the court will make the order without the need for a hearing.

Issues on the notice given is one of the most common reasons why proceedings may be dismissed outright or set down for hearing. Either way it incurs further costs for the landlord and possibly Agents if it is their mistake. Some of the more common reasons for claiming the notice is invalid are:

(a) It was never received - so much easier to ensure there is proof of the service of the notice which can be included in the court documentation
(b) The notice was served before the tenancy began
(c) An incorrect notice was served

Before discussing ways to avoid the above difficulties, it should be noted that under the Act there are two different notices which can be served and deciding which one to use is dependant upon whether the tenancy has expired or not when the notice is served.

If a notice is served during the course of the fixed term tenancy then a notice under s21(1) of the Housing Act can be served giving "not less than two months’ stating that he requires possession of the dwelling house". So long as the Landlord or Agent gives the two months' notice in writing the notice will be valid and does not need to specify a termination date – but if one is specified ensure that it is a date that is more than two months after the date of receipt by the tenant of the notice. The notice does not need to be in any particular form but most agents use a standard form.

If the tenancy has expired and has become a "periodic" tenancy then Notices under s21(4) must be given.

These notices must be more specific and must specify an end date and the date must be the last day of a period of a tenancy. Consideration should be given to including some appropriate 'fall back' wording in case the date specified turns out to be wrong. Again it is usual for Landlord and Agents to use a standard form but completion of it must be accurate.

Avoiding the problems
It is fairly common for Agents to attach a s21(1) Notice to the tenancy agreement at the outset. The tenant comes in to their offices to sign the agreement and is given a notice at the same time, often attached to the back of the tenancy agreement. They do not see the s21 notice attached, or claim that they did not see it, and when proceedings are issued, they claim that they have never received one. By putting an extra paragraph at the bottom of the notice "I confirm that I have received this notice on the.." etc. and having it and a duplicate copy to be kept on file signed by the tenant may avoid this. However, this won't help where you are sending a s21(4) notice in the post.

Even if you get the tenant to sign the bottom of the document it does not avoid a potential claim that the notice was served before the tenancy began. It is often the case that tenants will pop into the Agent's offices to sign documents before the tenancy has begun and service of the notice attached to the back of the tenancy agreement may defeat or at least cause argument in any action that the landlord wishes to take in the future.

To be absolutely safe and to avoid the above issues it is always best to serve the notice by recorded delivery post the day after the term of the tenancy has begun. In the beginning it is unlikely that a tenant would refuse to accept recorded delivery post and a copy of their signature can be kept on the file. If the recorded delivery was not accepted there would be ample time to consider and make arrangements to serve the notice by hand with the person serving it signing a certificate of the date time and circumstances of service for use in the court papers later.

As previously stated when a tenancy has become a periodic tenancy it is very important that the correct notice is served detailing the information required under the Act. Standard forms will usually incorporate all the relevant information but it is important to make sure that the dates are correct and/or have a fall back provision as described above. There must be two clear months and the date must be the last day of the period of the tenancy. Remember that it will probably only become a periodic tenancy if the terms are the same as the original tenancy, otherwise it is possibly a replacement tenancy and you are back to the beginning of serving a s21(1) notice and not being able to start proceedings until the further into the new tenancy.

Can you rely on the s21(1) Notice served at the outset during the periodic tenancy? The answer is 'yes', unless you have in any way invalidated the original Notice, for example by giving the tenant a new tenancy agreement, confirming in writing that the tenancy is now a periodic tenancy and you will give them two months notice if you want them to leave..

There are also other areas that can cause problems when seeking possession. For example:

Ensure the 'landlord' named in the tenancy agreement is in fact the person who is the legal owner or tenant of the property and has the legal ability to grant the tenancy and that where there is more than one they are all named as landlord;

Ensure compliance with legislation relation to deposit protection

Keep true and complete copies of the final signed agreement and other documents and, if appropriate certificates or other documentary evidence of service of notices so that these items can be included in the papers submitted to the court

I hope this helps and if in doubt it is always best to seek legal advice.

Rita Wright
Legal Executive
Housing Team

April 2010


Land Registry statistics show Breeze & Wyles maintaining its position in the top ten UK conveyancers

In the recent figures published by the Land Registry, Breeze and Wyles Solicitors LLP has maintained it position as one of the largest conveyancing outfits in the country by Land Registry applications. Despite a month when applications reduce Breeze & Wyles saw applications rise by over 200 on the previous month.

With our focus on process automation and cost efficient pricing we are leading the market in innovations and customer service.


Employment Law Update March 2010

March 2010

Dear Employer

With the milder weather upon us and the worst signs of the winter vanished, thoughts turn to spring-cleaning (at least, some peoples do!). Time to dust off those mouldy old contracts and policies festering from years ago and have some new ones drafted. For those who never had any policies or contracts in the first place, time to think about shifting into the 21st Century. The recently-retired Head of our Countys Law Society remembers when junior staff were not expected to address the Senior Partner without being spoken to first, and employment law was almost unheard of. But that was 1960, this is now

In the meantime, if you have any particular employment issues, please do not hesitate to contact us: details are at the end of this letter. If you have any comments or suggestions on this newsletter, please email newsletter@breezeandwyles.co.uk

Regards

The Employment Law Team

Some Recent Changes and Cases in Employment Law

1. UNFAIR DISMISSAL WHEN INFORMAL DISPLINARY PROCEDURE ABANDONED IN FAVOUR OF FORMAL ACTION

This is a Court of Appeal decision. Staff at a mental health trust made complaints about a consultant psychiatrist alleging his conduct was harassing and distressing. The Trust dealt with the allegations under an informal procedure designed for conduct which does not constitute serious or gross offence. While the investigation was on-going further allegations were made against the employee. At the end of the informal proceedings the Trusts Medical Director stated unexpectedly that she would report the employee to the General Medical Council. As a result, the employee withdrew from the informal procedure, to be dealt with via an ordinary disciplinary hearing. The result was his summary dismissal for gross misconduct. He appealed unsuccessfully internally and then brought an unfair dismissal claim in the Tribunal.

It was held that his dismissal was unfair because the Trust had chosen to deal with the matter through the informal procedure, implying that the misconduct alleged was of a relatively minor nature. The same offences could not then be regarded as matters so grave and serious as to constitute gross misconduct and lead to summary dismissal later. As the additional misconduct during the investigation process could not amount to gross misconduct, either individually or cumulatively, it did not justify dismissal. Also, as the Medical Director had intentionally frustrated the informal procedure, the Trust could not reasonably sabotage those discussions and proceed down the disciplinary route of alleged gross misconduct. [Sakar v West London Mental Health Trust]

2. EMPLOYER VICARIOUSLY LIABLE FOR SEXUAL ABUSE

The Court of Appeal has held that the sexual abuse of a child was so closely connected with a priest’s employment that it would be fair and just to hold the Roman Catholic Archdiocese, his employer, vicariously liable. The priest used to pay the claimant for jobs such as cleaning his car or the presbytery. The boy (who had learning difficulties and epilepsy) also attended the church disco where he would help the priest clear up. Years later, he brought a claim against the Archdiocese.

The Court of Appeal considered the law on employers vicarious liability. The correct test is whether the acts (the torts) were so closely connected with the employment that it would be fair and just to hold the employer vicariously liable. Also, although the acts must be within the scope of the employment for a claim to succeed, a broad approach should be adopted when establishing the scope of the employment. The Court of Appeal held that, although the claimant was not a Catholic and had not had anything to do with the church itself, there was a sufficiently close connection between the priests employment at the church as a priest and the abuse which he inflicted, to render it fair and just to make his employer vicariously liable for the abuse. [Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church] (See Employers Traps Section)

Whats in the pipeline

1. STUDY & TRAINING FOR EMPLOYEES

From 6th April 2010, new legislation will provide employees with the right to request to undertake relevant study and training during working time (which will be unpaid). This applies to employees in organisations with at least 250 employees. Employers will be entitled to refuse any such request where a good business reason exists for doing so. It is expected that the right will be extended to all employees, irrespective of employer size, from April 2011. More details to follow. The legislation will be part of the Employment Rights Act 1996.

2 FIT NOTES

As advised in our last e-zine, these will come into effect from 6th April 2010 and will replace the current sick notes. On the new form, doctors can provide a may be fit statement if they think a patients health condition may allow them to work if they get suitable employer support, e.g. altered working hours, amended duties or workplace adaptations. Where an employee is too ill to work, the doctor will continue to advise this, as with the old sick notes. As before, self-certification will apply for the first 7 days. The fit note will not be required until after the 7th calendar day. There will be no change to statutory sick pay arrangements, nor to employers obligations under the Disability Discrimination Act. Guidelines are available for employers.

3. ADDITIONAL PATERNITY LEAVE AND PAY

From 6th April 2010, the provisions relating to additional paternity leave and pay in the Work & Families Act 2006 are expected to come into force. If they do, then employers will have to wait another year before they take effect. However, it would be wise to plan in advance. Essentially, the new provisions mean that mothers of children due on or after 3rd April 2011 will be able to transfer up to 6 months of their maternity leave to the father when they return to work. The key points of the scheme are quite complicated and, therefore, this will be re-visited in a further issue once it is confirmed that the Regulations are coming into force in April.

The Employer Traps and Other Tips

1. SELF-EMPLOYED v EMPLOYED

Sometimes individuals are genuinely self-employed; sometimes they are in fact really employees. If they are employees, then they of course have considerably more rights than the self-employed. Sometimes the parties may genuinely think that there is a self-employment situation when actually the facts point to an employer/employee relationship. It is the Tribunal which will ultimately decide what the correct status is when there is dispute, by looking to see what the true working relationship is. It can be the case that individuals are in fact employees even though the Inland Revenue has accepted them as self-employed. As always, if in doubt, take advice.

2. EMPLOYERS LIABILITY FOR ACTIONS OF THIRD PARTIES

Did you know that you as an employer are liable for the actions of third parties towards your employees in relation to sexual and sex-related harassment under the Sex Discrimination Act? This means that if one of your customers, for example, harasses a member of your staff in a way that is covered by the Act, then you could be liable. The Equality Bill which is due to receive royal assent this spring will extend employers liability for third parties to all elements of discrimination (i.e. not just sex).

3. MATERNITY LEAVE & HOLIDAY

Remember that an employee who is on maternity leave is entitled to accrue annual leave throughout the full period of her absence. It used to be the case that leave was only accrued whilst on ordinary maternity leave but it now applies to additional maternity leave also.

4. EMPLOYERS VICARIOUS LIABILITY

The case of Maga is a reminder of the liability of employers for the acts of their employees, even when the situation may not at first glance seem to be connected with work. It is a good idea to make your employees aware that they can be liable for acts committed outside works time (and thus making you as the employer liable).

Breeze & Wyles Employment Group

114 Fore Street, Hertford, Hertfordshire SG14 1AG
Tel: 01992 558411 Fax: 01992 503889
Email: jane.dismore@breezeandwyles.co.uk