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The Court of Appeal has issued a judgment in a personal injury case which has particular relevance for owners of horses.

 The case involved a woman who was injured while out riding. Her horse became scared and reared up suddenly, causing her to fall off. She was kicked in the mouth and suffered a severe facial injury.

 She sued the owner of the horse, arguing that he was liable for her injuries as they had resulted from the behaviour of the horse.

 The law relating to an owner’s responsibility for injuries caused by their animals is complex as it seeks to take into account the natural characteristics of the animal, and these vary widely.

 In this case, the woman argued that whilst she accepted the risk of the horse bucking – this being a common reaction of horses when they are frightened – in this instance the horse had bucked more violently than is usual. She claimed she had not been aware of that possibility and had therefore not accepted that risk. In other words, she claimed to have accepted the risk of ‘normal’ but not ‘violent’ bucking.

 The Court of Appeal would not accept that she could limit her acceptance of risk in this way. She had voluntarily accepted the risk that the horse might buck. The horse’s owner was not therefore responsible for her injury.

 This decision will be welcomed by horse owners who allow others to ride their animals. It is easy to see how a decision in favour of the claimant would have made the whole issue of liability in such cases a ‘grey area’ and could have led to a series of cases turning on the facts of the behaviour which led to the accident and whether it was ‘normal’ or ‘abnormal’.

 Contact us if you are concerned about the legal position relating to the ownership of, or injuries caused by, animals.

In a further case on whether or not it was reasonable for an employee at risk of redundancy to refuse an offer of suitable alternative employment, the Employment Appeal Tribunal (EAT) has reaffirmed that the test is a subjective one. In such cases, the Employment Tribunal (ET) must ask whether it was unreasonable for the particular employee to refuse the offer for the reasons they gave for doing so (Readman v Devon Primary Care Trust).

 Mrs Readman began her career with the NHS in 1976. In 1985, she moved away from a hospital setting and worked in various capacities in Community Nursing, ultimately as a Community Modern Matron for Devon Primary Care Trust (PCT). Following a reorganisation in 2007, this job disappeared and Mrs Readman was at serious risk of redundancy. She was offered the option of three posts, two of which were at a lower grade. The third post, the position of Modern Matron at Teignmouth Hospital, involved no loss of status but Mrs Readman rejected it on the ground that she had not worked in a hospital setting since 1985 and her career path and qualifications were in Community Nursing. She subsequently accepted work in Canada. Devon PCT refused to give her a redundancy payment because it believed she had unreasonably rejected an offer of suitable alternative employment. Mrs Readman challenged this decision at the ET.

 The ET held that whilst the first two posts on offer were not suitable, the offer of the position at Teignmouth Hospital was one of suitable alternative employment and it was unreasonable of Mrs Readman to refuse it. In the ET’s view, she had done so for her own reasons, particularly her desire to emigrate to Canada. Devon PCT was therefore entitled not to make a redundancy payment in her case. Mrs Readman appealed.

 The EAT upheld her appeal and substituted a finding that she was entitled to receive a redundancy payment. Whilst it agreed with the ET’s finding that the Teignmouth post was the only one on offer that constituted suitable alternative employment, the EAT held that the ET had erred in law in failing to address the core reason why Mrs Readman had refused the offer. She had stated clearly that she had no desire to return to work in a hospital setting, yet the ET had failed to consider whether this was a sound and justifiable reason for her rejecting the post. The ET was clearly of the view that a reasonable employee would have accepted the offer and had ‘wholly failed to grapple with the question’ of whether it was unreasonable for this employee, for the reasons which she gave, to refuse that offer.

 In the EAT’s judgment, in the particular circumstance of the case, the desire not to work in a hospital setting did provide Mrs Readman with a sound and justifiable reason for turning the offer down. That she may have had in the background a desire to go to Canada and might prefer to have the redundancy money were plainly incidental to the main reason for her refusal, which was clearly stated and repeated on several occasions.

 Contact Nick Fentiman for advice on any redundancy matter.

Preventing a family member from benefiting from your estate can be fraught with difficulty, even if the family member in question cannot claim to be a dependant and so is not able to make a claim on your estate under the Inheritance (Provision for Family and Dependants) Act 1975.

 A recent dispute, which was settled out of court, illustrates some of the issues that can arise. It involved the estate of a man who changed his will in 2010, when he was terminally ill, in order to exclude his son and grandchildren from the lion’s share of his estate. Under the revised will, the bulk of his estate was to pass instead to a friend. In this case, the son was not a dependant, so the 1975 Act was not in point.

 A few weeks after seeing his solicitor and changing his will, the man died. His son contested the will. It was his contention that his mother, who had died in 2001, had quite specifically stated at a family lunch that she wanted her half share in the family home to pass to him. Although his parents’ wills provided that their estates would pass firstly to the surviving spouse, he claimed that there was a strict understanding that her wishes would be heeded as regards her share in the home.

 The son alleged that the new will had been procured as a result of undue influence, but there was sufficient evidence from his late father’s solicitor and doctor that this was not the case and that he was of sound mind when the will was drawn up.

 However, the argument that his father and mother had made ‘mutual wills’, or had created what lawyers call a ‘secret trust’ (i.e. a promise to benefit someone not specifically named in the will), did carry weight and the case was settled out of court with the son receiving an appropriate share of the estate.

 We can advise you on any potentially contentious issues in the terms of your will or regarding an estate from which you believe you should benefit.

Employers who use agency temporary staff The Agency Workers Regulations 2010 (AWR) came into force on 1 October 2011. should ensure they have procedures in place to comply with the changes.

All agency workers are entitled, from the first day of their assignment, to information on any job vacancies and to make use of collective facilities and amenities available to comparable workers and employees. These may include staff canteens, childcare facilities, transport services (such as local pick-ups and drop-offs and transport between sites – but not company car allowances or season ticket loans), staff common rooms, prayer rooms and car parking.

Employers should ensure that agency workers know how to access information relating to job vacancies and are aware of all relevant facilities. This can be done either by providing details directly to the worker, as part of an induction pack, or by providing details to the employment agency to pass on to the agency worker as part of the information on the assignment.

Agency Workers Who Have Completed a 12-Week Qualifying Period
Once an agency worker has worked in the same job for the same hirer for a period of 12 calendar weeks, they will be entitled to the same basic employment and working conditions as if they had been recruited directly by the employer. The qualifying period is not retrospective: an agency worker only starts to accrue the 12-week qualifying period from 1 October, even if the assignment started before the AWR came into force. The first date on which an agency worker can complete the qualifying period is therefore 24 December 2011.

Because the working patterns of agency workers can be irregular, the AWR provide for a number of circumstances in which breaks do not prevent them from completing the qualifying period. Employers are therefore advised to study the rules for calculating this period in order to avoid errors.

Basic employment and working conditions include:

• basic pay;
• duration of working time;
• annual leave;
• night work; and
• rest breaks and rest periods.

The rights with regard to pay include:

• basic pay based on the annual salary the agency worker would have received if recruited directly – this will usually be converted into an hourly or daily rate, taking into account any pay increments the worker would have received;
• overtime payments – subject to the same requirements as if the worker had been recruited directly;
• payment for annual leave;
• bonus or commission payments linked to the amount and quality of work completed – e.g. achievement of sales targets;
• bonuses linked to personal performance or non-contractual payments that are made with such regularity that they are customary;
• vouchers or stamps which have a monetary value and can be exchanged for money, goods or services – e.g. luncheon vouchers and childcare vouchers but not salary sacrifice schemes; and
• paid time off for antenatal appointments.

Some payments may require those recruited directly to complete a period of service – e.g. enhanced entitlement to annual leave after 12 months. An agency worker will need to complete the same period of service to become eligible. This should be calculated from the start of the 12-week qualifying period.

The rights with regard to pay do not include:

• occupational schemes – sick pay, maternity, paternity and adoption pay;
• redundancy and notice pay;
• payment for time off to carry out trade union duties;
• guarantee payments, as they apply to directly recruited staff if laid off;
• advances in pay – e.g. for season tickets;
• payments or rewards linked to financial participation schemes such as share ownership;
• the majority of benefits in kind – e.g. reduced-rate mortgages or employer-funded training allowances;
• bonuses where there is no recognition of a worker’s personal contribution, such as a flat rate bonus paid to the workforce to encourage loyalty or reward long service; and
• additional, non-contractual bonuses – as long as these payments are not made so often that they have become customary.

Agency workers will be covered by the new automatic pension enrolment which is being phased in between October 2012 and October 2016, depending on the size of the company.
To ensure equal treatment after 12 weeks’ service, employers who use agency workers should have in place proper job descriptions and pay structures for the rôles they perform. In addition, to facilitate calculation of the qualifying period, a record should be maintained showing the dates and hours worked, the location of their work and their job rôle. Employment agencies should be provided with information on the basic terms of comparable staff hired directly by the employer.
The AWR contain anti-avoidance provisions which prevent a series of assignments being structured so as to prevent an agency worker from completing the qualifying period. Breaks between assignments will not, therefore, necessarily prevent agency workers from gaining the same basic employment and working conditions as staff recruited directly.

The Department for Business, Innovation & Skills has published detailed guidance on the AWR, which can be found at http://www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-949-agency-workers-regulations-guidance.pdf.

For advice on implementing the AWR, please contact Nick Fentiman 01564 731660.

When giving a reference, an employer has a duty of care to an ex-employee to ensure that the information provided is true, accurate and fair.

In Jackson v Liverpool City Council, the Court of Appeal has given useful guidance on how to deal with the situation when concerns regarding an employee’s work come to light after he or she has left your employment.

Mark Jackson had worked as a social worker for Liverpool City Council (Liverpool) for 12 years before leaving to take up employment with Sefton Borough Council (Sefton). At that time, he received a favourable reference from his team manager at Liverpool. A year later, he applied for and was offered another post at Sefton, subject to satisfactory references. Although two such references were provided from previous employers, a reference provided by Liverpool contained some positive statements but also left two questions – whether or not Liverpool would re-employ Mr Jackson or if it knew of any reasons why Sefton should not employ him – unanswered and mentioned concerns about his record keeping. The referee stated that she could not elaborate as the concerns had arisen after Mr Jackson left Liverpool’s employment and had not been investigated. She did say, however, that they would have warranted a formal improvement plan rather than more serious disciplinary action had he remained with the Council. When she later received a phone call from Sefton seeking clarification, she made it clear that she was not in a position to answer the questions in ‘either a positive or negative manner’.

The offer of employment was withdrawn in light of the reference and Mr Jackson remained unemployed for a year. He brought a claim for damages in relation to the reference provided by Liverpool.

The County Court found that the reference provided by Liverpool was true and accurate but held it to be unfair because it carried with it an ‘unanswered, uninvestigated, unparticularised, unspecific allegation [...] which the ex-employee had no opportunity to refute or answer’. Liverpool could have investigated the matter or refused to provide a reference at all. Liverpool appealed against this decision.

The Court of Appeal had some sympathy for Mr Jackson but took the view that the reference could not be said to be unfair. In the Court’s view, Liverpool could not be criticised for providing a reference and, in the circumstances, could not be reasonably criticised for including within it a cautionary remark. Sefton’s conversation with the referee was highly relevant as it formed an integral part of the overall reference provided by Liverpool. The referee had made it clear that she could not answer the questions in either a positive or negative manner. It was then a matter for Sefton to raise the issues with Mr Jackson himself. Had Liverpool failed to provide a reference, it was likely that more serious adverse inferences would have been drawn as a consequence.