Fentimans Solicitors

Tel 0121 774 1037 Tel 01564 779 459

Fax 01564 779 649

Greville Court Business Centre, 1665 High Street, Knowle, Solihull B93 0LL

Part-Time Secretaries Required to cover Maternity Leave

January 23rd, 2014

Experienced Legal Secretary required part-time to cover maternity leave, beginning May 2014

The applicant must have the ability to
Work in a team
Deal with varied work load, including, matrimonial, conveyancing, employment, wills & probate.
Ability to deal sympathetically with general enquiries from the public in person & on the telephone.
Knowledge of digital dictation, Word & Outlook, and have good accurate typing skills.

Hours of work to be agreed, Holidays pro rata, The working environment is comfortable offices on the first floor on the High Street in Knowle.

Please send a cv in the first instance to janet@fentimans.co.uk

Disability Discrimination – Effect, Not the Cause

September 15th, 2013

In Walker v
Sita Information Networking Computing Limited, the Employment Appeal Tribunal
(EAT) found that the Employment Tribunal (ET) was in error in concluding that a
claimant who was overweight and who suffered from a ‘constellation of symptoms’
that caused significant difficulty in his day-to-day life was not disabled for
the purposes of the Disability Discrimination Act 1995 (DDA) – now superseded
by the Equality Act 2010.

 

Mr Walker,
who weighed 137kg, suffered from various conditions which gave rise to a
variety of symptoms. The ET described this as ‘functional overlay’, a
psychological condition which caused or aggravated Mr Walker’s physical
symptoms, compounded by obesity. An occupational physician believed that Mr
Walker suffered from a chronic permanent condition which affected his daily
living and an occupational health specialist invited to examine him concluded
that he had a wide range of symptoms in which a significant part was played by
a behavioural component. However, there was no evidence of any pathological
process to explain the range of symptoms nor any significant structural changes
of a physical nature that would lead to significant impairment or disability,
but anyone carrying that amount of weight would become breathless and fatigued
and have difficulty walking because of leg pain.

 

The ET
concluded that because no physical or mental cause could be identified, Mr
Walker was not disabled for the purposes of the DDA.

 

Mr Walker
appealed on the ground that it is not always necessary to categorise an
impairment as physical or mental and it is the effect of the impairment, not
its cause, that is material in deciding whether someone is disabled under the
DDA.

The EAT said
that when determining whether or not a claimant is disabled, an ET must
concentrate on whether the individual has a physical or mental impairment.
Plainly, on the evidence, Mr Walker was substantially impaired and had been for
a long time. The ET had taken the wrong approach. The question is whether the
individual has the impairment and whether the impairment may properly be
described as physical or mental. The DDA does not require a focus on the cause
of that impairment. Whilst there may be cases where the ET finds that a claimant’s
symptoms are not genuine, the genuineness of the symptoms and their effects was
not challenged in this case. In reaching its decision, the ET had failed to
follow the guidance accompanying the DDA and had also wrongly relied on an
authority which dated from the time when a recognised mental illness had to be
demonstrated before a mental impairment could be regarded as a disability. The
law was changed in 2005, when the requirement that the condition be a
clinically well-recognised illness in order to qualify for protection under the
DDA was removed.

 

On the
question of obesity, the EAT did not accept that obesity of itself renders a
person disabled, but it may make it more likely that someone is disabled.

Contact Nick Fentiman for advice on any employment law matter

Walker v Sita Information Networking Computing Ltd. [2013] UKEAT/0097/12.

Codicil Invalidity Claim Fails

September 15th, 2013

A recent case in which the son of an elderly man challenged
an alteration made to his father’s will shortly before he died shows how high
the hurdle is set when attempts are made to revoke a will on the ground that
the person making it lacked mental capacity.

 

The man had lived with his partner since 1997, following his
divorce in 1989. In 2009, seriously ill with motor neurone disease, he arranged
for his solicitors to add a codicil to his will giving his partner an annuity of
£12,000 a year from his estate, a car and the right to remain for life in the
home they had shared. Some months later, the man died.

 

The man’s son, who was also his executor, was the sole
beneficiary under his will before the codicil was added. He opposed the
codicil, arguing that it was void for ‘want of capacity’ (i.e. that his father
was not of sound mind when it was executed) and for ‘want of knowledge and
approval’ – i.e. that his father did not fully understand the effect of the
codicil.

 

He alleged that his father was a near-alcoholic who had
suffered from declining physical and mental capacity in the period before his
death.

 

Both sides produced expert medical evidence in support of
their positions but the judge was clear that the codicil, which had been
drafted with the advice of an independent and experienced solicitor, was valid.

Greaves v Stolkin [2013] EWHC 1140 (Ch).

 

Age-Related Differences in Voluntary Redundancy Scheme Justifiable

September 15th, 2013

The
Employment Appeal Tribunal (EAT) has ruled that a voluntary redundancy scheme
whereby employees over the age of 35 were paid more than younger employees with
identical length of service did not constitute direct discrimination on the
grounds of age (Lockwood v Department for Work and Pensions).

 

Miss Lockwood
began working for the Department for Work and Pensions (DWP) as an
Administrative Officer in the Benefits Agency at the age of 18. Eight years
later, her job was no longer needed and she applied for voluntary redundancy
under the Civil Service Compensation Scheme (CSCS). Her application was
accepted and her employment ended in September 2007.

 

Under the
CSCS, Miss Lockwood was entitled to a redundancy payment of £10,849.04. Had she
been over 35, however, she would have been entitled to a further sum of
£17,690.58. The disparity in treatment prompted her to lodge a complaint of
direct age discrimination.

 

The
Employment Tribunal (ET) rejected her claim on two grounds. Firstly, it held
that there were material differences between the two age groups so they were
not truly comparable. Secondly, if the over 35 age group were truly comparable
with the younger age group, the DWP had objectively justified the less
favourable treatment of younger employees.

 

Miss Lockwood
appealed.

 

The EAT was
satisfied that no error of law had been made in relation to the ET’s finding
that there was a material difference between the two age groups. Statistical
evidence had been produced showing that the difference in payments reflected
the comparative difficulty loss of employment presented to the older workers – for
example difficulty in finding another job and in meeting family financial
commitments – compared with those in the younger age group. Whilst this finding
effectively disposed of the appeal, the EAT went on to consider the
justification point.

 

In the EAT’s
view, the ET had taken into account relevant factors that entitled it to
conclude that the DWP had adopted proportionate means to achieve the legitimate
aim of providing workers with a ‘proportionate financial cushion’ until such
time as they could find another job, which would be more difficult for those in
the older age group.

 

The EAT then
went on to consider the public interest point identified by the Supreme Court
in Seldon v Clarkson Wright and Jakes, which was decided after the ET ruled in
this case. The Court ruled that in cases of direct discrimination, the ET
should consider, amongst other things, whether the difference in treatment
stems from an aim that can be objectively and reasonably justified as pursuing
a legitimate social policy derived from EU
Council Directive 2000/78/EC, which establishes a general framework for equal
treatment in employment and occupation.

 

The EAT held
that helping older workers who would find it harder than their younger
colleagues to find another job was a legitimate aim and the difference in
redundancy payments was a proportionate means of achieving that aim.

 

If you need
to carry out a redundancy programme, contact Nick
Fentiman for advice to ensure that the actions you take do not
contravene discrimination or other employment law.

Restrictive Employment Covenants Must Be ‘Reasonable’

September 15th, 2013

In declaring
unenforceable a restrictive covenant contained in a senior financial adviser’s
employment contract, the High Court has emphasised that such clauses are not
worth the paper they are written on if they impinge unnecessarily on the
liberty of former employees or amount to an unreasonable restraint of trade
(Ashcourt Rowan Financial Planning Limited v Hall).

 

A company
which provides financial advice to corporate and high net worth clients had sought
to enforce a restrictive covenant after one of its advisers resigned and took
employment with a direct competitor. The covenant purported to restrict the
employee, amongst other things, from directly or indirectly being engaged or
concerned in a competing business for six months after his departure.

 

The company
asserted that certain of its best clients had moved with the adviser to his new
employer and that several other members of its staff had also resigned and
joined him in his new role. It was submitted that the covenant was no wider
than was necessary to protect the company’s legitimate commercial interests.

 

However, in
dismissing the company’s claim, the Court underlined that, as a matter of
public policy, such clauses are unenforceable if they go beyond what is
reasonable between the parties or place restraints on trade that are ‘injurious
to the public interest’.

 

Whilst
recognising the company’s right to maintain the confidentiality of its client
information and to place restrictions on employees for the benefit of the
business generally, the Court noted that the particular covenant purported, for
a six-month period, to restrict the adviser from employment anywhere in the UK,
or beyond, in a field in which he had worked for many years.

 

Ruling that
the scope of the covenant was broader than required to protect the company’s
legitimate interests, the Court also noted that it purported to restrict the
adviser from even indirect involvement with competitors, regardless of whether
his role would in fact bring him into competition with his former employer.

 

We can advise
you on drafting restrictive covenants that will both protect your legitimate
business interests and be enforceable by the courts in the event of a legal
challenge. Contact  Nick Fentiman
for advice.