Merry Christmas to Readers of this blog

Dear All

On behalf of Breeze & Wyles Solicitors LLP I would like to wish you all a Happy Christmas and a prosperous New Year!


Brendan O'Brien

PS - This blog will return on 5 January 2011

Planning strategy ping pong throws planners and developers into confusion

The Government’s attempts to abolish regional housing strategies are causing confusion for developers and for local planning authorities alike. In July, the Communities Secretary, Eric Pickles, tried to abolish the Regional Spatial Strategies and to replace them with a system of financial incentives to encourage local authorities to grant residential development applications.
The effect of this was that, for many developers, months or years of work on planning applications would be wasted, and a fresh application under any new rules for the same land might have less chance of success.
One developer, CALA Homes, challenged the Minister’s action in the High Court in November, saying that he had no power to abolish the existing rules in this way. The Judge agreed with CALA Homes, saying that the rules could not be changed by the Minister without the approval of Parliament.
There were, however, a good few more baffling twists and turns. The High Court also declared that local planning departments should not take into account the Government’s attempted abolition of regional strategies. The Communities Secretary responded to this by writing to every local planning department warning them that, when considering planning applications, they must treat the Government’s intention to scrap regional housing strategies as a significant consideration.
This action was in turn challenged in the courts, and the letter to planning departments was “stayed”. The Government challenged the stay and it was lifted on condition that the Government puts a warning on its website saying that the letter to the planners is subject to legal challenge and might have to be disregarded if the challenge is successful. The hearing of CALA’s latest challenge is likely to be in January.
Said property law expert Hannah Collins of Breeze & Wyles solicitors: “Developers and planners both stand to be baffled and bemused by this legal game of ping pong. If the planners ignore the minister’s letter they may be in trouble for disregarding government policy, but if they follow the government’s recommendation and refuse a planning application, they may lay themselves open to appeal and more costs at a time when money is in short supply.”
She added: “And for developers, it creates another headache at a time when the housing market is still in the doldrums.”
If the CALA action is successful developers will probably have a window of twelve months to get planning applications in under the current regime. By the end of that period the Government’s Localism Bill will have made its way through Parliament and the new regime will be in place.
Web site content note:
This is not legal advice; it is intended to provide information of general interest about current legal issues.

Negotiating a happy Christmas for the children

Divorced and separated couples who cannot agree on arrangements for children over Christmas should consider mediation to work things out, rather than an application to the court, according to family law experts.
Christmas is presented as a time of universal happiness and enjoyment; expectations run high and it can be hard for reality to match up. As a result, the aftermath of Christmas is always a busy time for family law solicitors.
But everyone agrees that it’s a time when the children should come first, and hostilities between parents are being urged to put aside their differences and adopt some simple tips:
• Try to make arrangements for where the children are to stay well in advance. Children do not like uncertainty so the ideal is to have an arrangement that will be repeated over the years, for example one year the kids spend Christmas Day with Mum and Boxing Day with Dad, and the next year this is reversed.
• Parents must not compete over presents for the children.
• Presents should be agreed to prevent duplication or other practical problems.
• It is stressful, confusing and upsetting for children if their parents argue or show ill will towards each other, so parents should be polite, cheerful and positive towards each other when picking up or handing over the children.
Said Rhianna Townsend, family lawyer with Breeze & Wyles Solicitors LLP: “There’s an increasing emphasis on mediation which should be good news for the whole family. It’s likely to become a requirement in due course that separating couples should have an interview to look at their suitability for mediation, as an alternative to the traditional divorce process. It’s a much more cost effective way of doing things and it’s important that couples find somehow to help them resolve issues, rather than seeking an aggressive divorce.”
Rhianna added: “The courts are not an ideal place to sort out marital problems as they are adversarial rather than aimed at solution finding. Whether you have problems agreeing arrangements for children or with agreeing the division of assets, mediation can offer an effective way of coming to a solution that both sides can sign up to.”
In a court case the parties each present their case and then a judge decides what is to be done. This can leave a party, possibly both parties, feeling bitterly resentful.
By contrast, in mediation, it’s about finding mutually acceptable outcomes. The mediator talks to each side separately, finds out what is really important to them and tries to enable them to reach an agreement that they are both able to live with. The important thing is that the parties are in control because they can say yes or no to any proposal.
Some useful advice for parents can also be found on the website of the charity Resolution, at

Great News for Small Businesses!

Business and Enterprise Minister Mark Prisk today set out three key measures by the Government to promote support for micro-lending to small business.
Speaking to the Community Development Finance Association (CDFA), Mr Prisk set out reforms to the Enterprise Finance Guarantee scheme (EFG) to support community development finance institutions (CDFIs); announced he is issuing guidance to CDFIs to enable greater use of current support; and directly invited CDFIs to bid to the Regional Growth Fund.
Mr Prisk said that the Government will increase access to the scheme (which guarantees 75 per cent of a loan to small businesses) for CDFIs, which typically make more risky investments than other lenders. From April 2011 the Government will pay out on defaults of up to 20 per cent of each lender’s Enterprise Finance Guarantee (EFG) portfolio on the first £1 million of loans, an increase on the current 13 per cent.
CDFIs have an important role to play in supporting communities. They are typically not-for-profit groups that lend to businesses and individuals that have been turned down by mainstream finance institutions. The CDFA’s Inside Out report released today revealed that last year the industry made 19,000 loans, worth £200m as well as creating and supporting 8,600 jobs and 2,000 businesses.
Mr Prisk is providing guidance to enterprise CDFIs to enable them to take advantage of a little-used aspect of the EFG, which enables banks to lend directly to CDFIs, boosting their loan capacity. Under this scheme CDFIs are exempt from the usual two per cent premium on the loans.
He invited CDFIs to bid for funding from the Regional Growth Fund, which will target regions that are too dependent on the public sector. The Government is also developing a Big Society Bank to support the growth of the social investment market and make it easier for social enterprises and other enterprising civil society organisations, including CDFIs, to access capital. Mr Prisk also invited CDFIs to work with Government as it develops the Big Society Bank.
Mr Prisk said: “I want to encourage people from all backgrounds to start their own business. Community development finance institutions are extremely important in supporting business in communities that need a boost in enterprise and economic growth.
“With changes to the Enterprise Finance Guarantee and our continued work on the Big Society Bank and Regional Growth Fund new opportunities are opening up for CDFIs to increase their loan base. CDFIs are well positioned to make strong bids for RGF support in line with the objectives of the fund.”

Employment Law Newsletter from Breeze & Wyles Solicitors LLP December 2010

Dear Employer

We expect you will be looking forward to a well-earned break over the forthcoming Christmas period. Perhaps you will be the recipient of wonderful Christmas gifts from your grateful employees. Far be it from us to put a damper on your enjoyment but just make sure that any gifts you receive from or give to anyone else do not constitute a bribe. We make no apology in this edition for expanding on a particular part of the forthcoming Bribery Act. Thrilling it may not be, but coming this way it certainly is.

Finally, the importance of complying with Data Protection Rules has been seen in a recent case: see below. This would seem to be the ideal opportunity to tell you that we have now launched a service offering advice on Intellectual Property and Information Technology issues, including how to be compliant with data protection legislation. Do contact us for further details of our service.

Meanwhile we wish you all a happy Christmas and an even more prosperous New Year.

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

Kind regards

The Employment Law Team

Some Recent Changes and Cases in Employment Law
There are not many reported cases on how ex-employers can be liable as a result of giving a reference for a former employee, and ironically one such case is a recent one against a firm of solicitors. The firm gave a poor reference to an ex-employee because she had successfully pursued a discrimination claim against the firm. The reference commented on the discrimination claim, the employee’s “poor relationship” with the firm’s partners and added that she was “inflexible” in her opinions. The employee had received a job offer but when the new employer received the reference it withdrew the offer. The Employment Tribunal found that both the new and the ex-employer had unlawfully discriminated against the employee. On appeal the EAT (Employment Appeals Tribunal) held that the new employer’s withdrawal of the offer was not only foreseeable but a “direct and natural consequence” of the information supplied in the reference. The ex-employer was liable for the employee’s future lost earnings (which had been caused by the withdrawal of the job offer). [Bullimore v Pothecary Witham Weld Solicitors & Anor (2010)]
This was another case on the meaning of “religion or belief” under the Employment Equality (Religion and Belief) Regulations 2003. The Claimant was a psychic who believed not only in life after death but also that the dead could be contacted and was a member of the Spiritualist Church. The Employment Judge applied the guidance from an earlier case which is whether such belief had sufficient cogency, seriousness, cohesion and importance, and was worthy of respect in a democratic society. The Judge, on considering points such as the Spiritualist Church having been founded in 1853 and having a significant membership in Britain, ruled that spiritualism was held to qualify as a religion. This decision was upheld by the EAT. [Great Manchester Police Authority v Power 2010 EAT].
When is dismissal effective? In this case, the employer sent a letter of dismissal to the (suspended) employer on 29th November which was delivered to her on the 30th. However, she had gone away and did not return until 3rd December. Even then, she did not actually receive and read it until 4th December when her boyfriend’s son found it in his homework(!). By the time she had been through an internal appeal she did not lodge her claim for unfair dismissal until 2nd March the following year, therefore the dates of 29th and 30th November were out of time (as claims have to be presented within three months of the termination date) but 4th December was within time. The Tribunal, EAT and the Court of Appeal allowed her to proceed with her claim, which decision has now been upheld by the Supreme Court.
The case confirmed the principle about termination, namely:
· The effective date of termination (EDT) is when the employee receives and reads the letter of termination; or
· At least when he or she has had a reasonable opportunity to do so
So what is a “reasonable opportunity”? The Supreme Court said that the test is to be applied subjectively to the claimant, in his or her particular circumstances. It also pointed out that an employer who wants to be certain that his employee is aware of the dismissal should avoid any doubt by telling them face-to-face that he or she has been dismissed. (Gisda Cyf v Barratt)
Hertfordshire County Council is one of two bodies recently fined by the Information Commissioner for breaches of the Data Protection Act. The Council’s fine was £100,000. The errors at the Council occurred when employees in the childcare litigation unit accidentally sent two faxes to the wrong recipients on two separate occasions. The faxes contained sensitive material concerning a child sex abuse case. The first misdirected fax was meant for a barrister’s chambers but was sent instead to a member of the public. The second was intended for a county court but was mistakenly sent to a barrister’s chambers unconnected with the case. The other company that was fined, Sheffield-based A4e, was guilty of a breach when an employee took home a work’s computer containing personal information relating to 24,000 people who had used community legal advice centres. It was stolen from the employee’s house and an unsuccessful attempt to access the data was made shortly afterwards. Personal details recorded on the system included full names, dates of birth, income level, information about alleged criminal activity etc. Both bodies reported the breaches to the Information Commissioner’s office as soon as they were discovered. The Commissioner ruled that A4e did not take reasonable steps to avoid the loss of the data but said the incident was “less shocking” than the Council’s security breaches. A4e was fined £60,000. The case emphasises the importance of employers making sure that their data is properly protected.
What’s in the pipeline
This is now due to come into force in April 2011. The Bribery Act is considered by many to be one of the strictest pieces of anti-corruption legislation in the world which is intended to aid the prosecution of corruption committed overseas by UK incorporated organisations or those doing business in the UK. It sets out four offences, namely:
· Offering, promising or giving a bribe (defined as a “financial or other advantage”)
· Requesting, agreeing to receive or accepting a bribe
· Bribing a foreign public official
· A new strict liability “corporate” offence that applies where an organisation (being a company or other corporate body including a partnership) fails to prevent bribery by a person “associated” with it
It is this last offence that is expected to have significant implications for employers. The only defence available for an organisation charged with this offence is to show that it had “adequate procedures” in place that were designed to prevent bribery. It is therefore essential that employers are proactive in their efforts and ensure that “adequate procedures” to prevent bribery by those performing services for or on their behalf have been implemented. “Associated” persons is defined as persons who perform services for or on behalf of the organisation in question and who are intending to obtain or retain business or an advantage in the conduct of business for the organisation. It includes (but is not limited to) employees, agents and subsidiaries.
Employers should consider the following:
“Adequate procedures”: the Ministry of Justice is currently consulting on guidance for companies on this, with a view to publishing the final guidance in early 2011. However, this may leave little time to prepare and implement “adequate procedures” before the Bribery Act comes into force. It is therefore suggested that employers should already be reviewing their bribery-related policies and procedures to establish what is in place and then check them against the final guidance.
Suggested preparation
Procedures that organisations might consider implementing to deal with the risk of bribery:
(a) Whistle-blowing: put effective whistle-blowing policies and procedures in place to allow employees and workers to report wrongdoing and, in return, offer them adequate protection from reprisals.
(b) The express terms of an employee’s contract are one of several factors a Court will take into account when deciding whether or not they had an obligation to report wrongdoing. Therefore, employers should consider including specific reference in employment contracts to an obligation to report bribery and also to the procedure for doing so which should be set out in the organisation’s whistle-blowing policy. An express term requiring employees to report bribery should refer also to reporting their own wrongdoing.
New Hires: it may be appropriate for some organisations during the vetting process to include specific enquiries about whether they have ever been disciplined for or suspected of bribery.
Discipline and dismissals: one way in which organisations could demonstrate their commitment to an anti-bribery culture is by the way in which they discipline employees who are involved in bribery. Employers should consider for example:
· Confirming in employment contracts that employees will not pay bribes
· Citing bribery as an example of gross misconduct in staff handbooks and disciplinary and dismissal policies
· Advising senior management that they should seen to support disciplinary action against employees and others involved in bribery to show that the organisation has a “zero tolerance” approach to bribery
Remuneration and commission: these arrangements may also come under scrutiny in the context of the Bribery Act if, for example, they could be interpreted as incentivising bribery. Organisations should, therefore, review their remuneration and commission arrangements to minimise the risk of such an interpretation e.g. by cross-referring to anti-bribery policies and procedures.
This is a complex subject and employers are advised to obtain specific advice on it.
The Employer Traps and Other Tips
Since the Equality Act 2010 came into force at the beginning of October, it is prudent to review your equal opportunities policies and other policies that deal with discrimination to reflect the new “protected characteristics” that the Equality Act brings into being.
As seen earlier in this Update, if you are dismissing an employee, then be absolutely certain that they receive notification of their dismissal. If you are doing things properly then you should be having a hearing in which they are actually dismissed and, therefore, told at the time, following which you should follow it up with a letter confirming the dismissal and telling them about their right to appeal.

Caution: Use of Compromise Agreements in light of Equality Act 2010

When terminating employment, Employers will often use a Compromise Agreement together with payment to the employee to ensure that the employees waive their rights to claim under the relevant contract or statute.

There are a number of situations in which compromise agreements should not be used. On e of which occurs when claims arise as a result of a failure to consult either in an redundancy or transfer of undertakings (transfer of a bloack of identifiable business). To the list you may be able to add another potential situation where Compromise Agreement should not be used or if used should be done with caution.

Tere is some confusion in the market following the enactment of the Equalities Act 2010 as to whether a valid compromise agreement can be created. Section 147 (4) and (5) provides that:
(2) A qualifying compromise contract is a contract in relation to which each of the conditions in subsection (3) is met.
(3) Those conditions are that--
(a) the contract is in writing,
(b) the contract relates to the particular complaint,
(c) the complainant has, before entering into the contract, received advice from an independent adviser about its terms and effect (including, in particular, its effect on the complainant's ability to pursue the complaint before an employment tribunal),
(d) on the date of the giving of the advice, there is in force a contract of insurance, or an indemnity provided for members of a profession or professional body, covering the risk of a claim by the complainant in respect of loss arising from the advice,
(e) the contract identifies the adviser, and
(f) the contract states that the conditions in paragraphs (c) and (d) are met.

(4) Each of the following is an independent adviser--
(a) a qualified lawyer;
(b) an officer, official, employee or member of an independent trade union certified in writing by the trade union as competent to give advice and as authorised to do so on its behalf;
(c) a worker at an advice centre (whether as an employee or a volunteer) certified in writing by the centre as competent to give advice and as authorised to do so on its behalf;
(d) a person of such description as may be specified by order.

(5) Despite subsection (4), none of the following is an independent adviser in relation to a qualifying compromise contract--
(a) a person who is a party to the contract or the complaint;
(b) a person who is connected to a person within paragraph (a);
(c) a person who is employed by a person within paragraph (a) or (b);
(d) a person who is acting for a person within paragraph (a) or (b) in relation to the contract or the complaint;
(e) a person within subsection (4)(b) or (c), if the trade union or advice centre is a person within paragraph (a) or (b);
(f) a person within subsection (4)(c) to whom the complainant makes a payment for the advice.

By the construction of sub-section 5 (in particular) sebsection (b) a lawyer is a connected person to the employee being the employees lawyer and as such the employee is a party to the compromise contract.

So where now. A redraft of your standard compromise agreements especially to ensure that the agreement covers a potential claim for discrimination? There is some argument that where a compromise agreement complies with the appropriate requirements under the Employment Rights Act 1996 then it would be perverse for an agreement seeking to achieve the same result not to be compliant. So is this a change in the law or not. The Government Equalities Office says otherwise stating that the position remains the same as under previous law.

We are not so sure and suggest that this will be tested in the courts before too long.

Directors are you aware of the defined thought processes in promoting your company?

Section 172 of the Companies Act 2006 requires Directors to:
(1) A director of a company must act in the way he considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole, and in doing so have regard (amongst other matters) to-
(a) the likely consequences of any decision in the long term,
(b) the interests of the company's employees,
(c) the need to foster the company's business relationships with suppliers, customers and others,
(d) the impact of the company's operations on the community and the environment,
(e) the desirability of the company maintaining a reputation for high standards of business conduct, and
(f) the need to act fairly as between members of the company.
You should note that this section defines a need to create a connection between what is good for the company and what is good for society at large. On the other hand in Re Smith and Fawcett Limited is was stated that the decision should be made by the court not on how the discretion should be applied but on how the Director in his/her honestly exercised their discretion.
With this is mind, Directors should at the very least document those thought processes so that it can be demonstrated that the Company's promotion was guided by thinking that fell within the requirements of section 172.

Directors Beware!: Are you CDO complaint?

This blog is aimed at those directors who have a duty to comply with competition law, such as those concerned with sales and marketing. If it weren't enough that business is facing the most challenging time in a 20 years business now has extra levels of regulatory compliance to negotiate.
On 19 October 2010 the OFT has issued draft guidance for Directors and businesses in relation to competition guidance and this can be found at The main thrust of the guidance, consultation and subsequent rules is to ensure compliance with competition rules by penalising failing businesses and particularly directors with competition disqualification orders (CDOs). So you as a Director are under threat if your business/company fails to comply.
The consultation ends on 21 January 2011 so it is imperative that you have your say.

Most Innovative use of ...: Breeze & Wyles Solicitors LLP wins again!!

Breeze & Wyles Solicitors LLP is pleased to announce its second award for its Automatic Title Checking System. Tikit TFB plc at its annual User Conference for 2010 awarded the firm the prestigious award of 'Most Innovative Use of Partner for Windows'.

Murray Fraser, Director of Volume Services said:

"It is fantastic news to continue to receive the recognition for the work that we have done to deliver nearly paperless and almost completely automated legal service processes.

It has been some years coming. Our problem in the past has been the lack of visibility of the process developments that we have made. Our focus has always been on development, automation and cost efficiencies rather than blowing our own trumpet. All of these are direct benefits to the clients.

Our focus in recent month has been the creation and development of a new product using the automation process developed in our property work. This is due to go live and an industry annoucement will be made in teh first week of the New Year! watch this space."

Further articles will be published in due course on the new product but we are currently in testing with one of our larger clients and hope to finalise the post beta version on 4 January 2011.

Does every trading business including start-ups have Intellectual Property?

Last week I attended a networking event for Business Start Ups. I spoke to most of the attendees describing what my firm in our Business Services Department. In most cases when I said that my firm was now able to offer a detailed solution on Intellectual Property the attendee would respond, “I suspect your client target list is full of mature businesses that have had the time to develop inventions, trade marks etc.”

My response on each occasion was: “Every trading business has Intellectual Property in one form or another. Most don’t consider they have it until such time as their business is threatened and this is a costly outcome. Would it not be better to prevent threats then have to cure them?”
If you have thought what does Intellectual Property mean and do I have any you can contact me for a questionnaire that should assist you and I will then e mail it to you.

My contact details are 01279 715322 or