When a marriage breaks up, it is usual for the couple to separate physically as well as legally and in some cases the physical separation can be considerable. With the increase in international travel and residence abroad, marriages between persons of different nationalities are becoming increasingly common.

When a couple divorces and one of them wishes to return to their country of origin, this can cause particular problems where there are children. Strictly, it is a criminal offence for a divorced or separated person to take a child under the age of 16 abroad contrary to the wishes of their spouse, unless they have a residence order in respect of the child.

Recently, a number of cases have tested the limits of the previously established rule as regards taking children abroad, which was that permission should only be denied when there was a strong reason for so doing. This rule appears to be less strictly applied than before.

When a parent wishes to relocate children within the UK, problems can arise if the other parent objects to the move. In a recent case, an application by a mother to move her children to the Orkney Islands from the North East was objected to by her ex-husband. Evidence was given of the mixed views of the proposed move held by the children, who were between nine and 14 years old.

The Court of Appeal supported the family court’s ruling that the move should not proceed.

Regrettably, there are no hard and fast rules about what the courts will or will not think is acceptable in the event that a move (especially one to a quite different locality) is proposed, with each case being decided on its own facts.

For advice on all aspects of child custody and family law matters, contact Susan Biggs 01564 731662

When deciding whether or not an adjustment intended to remove a disadvantage faced by a disabled employee is reasonable, one of the factors that should be taken into account is how effective it will be. In Leeds Teaching Hospital NHS Trust v Foster, the Employment Appeal Tribunal (EAT) held that where there is a real prospect of an adjustment removing the disadvantage, that would make it reasonable. However, that does not mean that a less than real prospect would not be sufficient to make the adjustment a reasonable one.

Paul Foster worked as a senior security inspector for Leeds Teaching Hospital NHS Trust. In 2006, his relationship with his line manager broke down, and by October that year he was unable to work as a result of stress. He raised a grievance alleging that he had been bullied and harassed by his manager, but the Trust was slow to deal with this. In June 2007, a doctor in the occupational health department advised that Mr Foster’s stress was the result of problems at work and his return would not be possible until these had been resolved. In September 2007, Mr Foster was told that his grievance was dismissed. The Trust’s stance throughout was that this resolved the bullying issue and that Mr Foster’s grievance and his ill health were entirely separate issues.

In January 2008, it seemed possible that Mr Foster could be redeployed to a different department and the doctor confirmed that he was ready to return to work. However, the possibility failed to materialise. Mr Foster was offered one of two posts in the security department and was told that redeployment was not an option. His position was that a return to work in the security department was not possible as the problem that had caused his stress still existed. The Trust recommended that he be dismissed if his ill health prevented him from taking up either of the two posts offered. In the event, however, a decision was taken in June of that year to put Mr Foster on the redeployment register for three months to see if suitable alternative employment became available. An opportunity did arise, but ill health prevented Mr Foster from pursuing it.

By the end of September 2008, the manager at the heart of Mr Foster’s grievance had left and the doctor believed a phased return to work in the security department would be possible. In the event, this did not happen. Mr Foster had concerns he wished to discuss but was told that he would have to raise a fresh grievance. By November 2008, the doctor advised that Mr Foster was unfit for work and his situation was unlikely to change in the foreseeable future. In February 2009, he was dismissed. This decision was upheld at an internal appeal hearing in October 2009, although the appeal panel did find that there had been a ‘failure to manage the sickness absence’ and that the Trust’s attempt to separate this from the investigation of Mr Foster’s grievance had been fatally flawed.

The widow of a man who died after having made a will that provided only that she should have a life interest in the home they shared has won her claim that she should be beneficially entitled to a half share in the property.

The couple had fallen out and the husband amended his will to provide his wife with a legacy of £8,000 and a life interest (the right to use for her lifetime, but not legal ownership) in the house.

Under the terms of the will, she could reside in the house for life. Were she to move out, however, and the house to be sold, she would have no right to a share in the proceeds of sale. She contested the will under the Inheritance (Provision for Family and Dependants) Act 1975 and was successful. The man’s executor, his son by a previous marriage, appealed against the decision. The relationship between the two was deeply hostile.

The estate was relatively small, consisting of the house and other assets totalling less than £30,000.

The Court of Appeal ruled that the decision of the lower court to make financial provision for the man’s widow was correct. The small size of the estate and the fact that a property sale would allow a clean break between the woman and her stepson were two factors taken into account by the Court.

When a will fails to provide adequately for a dependant of the deceased, it may be possible to claim for appropriate provision to be made. Contact Susan Biggs for advice on your individual circumstances.

In a recent case, the Employment Appeal Tribunal (EAT) examined a claim of unfair dismissal brought by an employee who had refused to accept a reduction in pay proposed because the employer was undergoing trading difficulties (Garside & Laycock Ltd. v Booth).

Garside & Laycock Ltd. provide building construction and maintenance services to public sector clients. In early 2009, the company suffered a downturn in its business and therefore held a number of meetings to explain the situation to its employees. It asked them to accept a five per cent reduction in pay in order to avoid possible further redundancies. Ultimately, Mr Booth, who had worked for the company for seven years, was the only employee who refused to accept a cut in salary. Garside & Laycock made attempts to negotiate a new contract with him, including an offer to review his pay levels after six months, but he rejected its offers and was therefore dismissed.

The Employment Tribunal (ET) first examined whether or not Garside & Laycock had established that there was ‘some other substantial reason’ as a ground for the dismissal of a kind such as to justify it, and found that it had.

The ET then went on to consider whether the dismissal was or was not reasonable. Relying on the judgment in Catamaran Cruisers Ltd. v Williams, the ET held that Mr Booth’s dismissal was unfair. In its view, Garside & Laycock’s financial position could not be said to be ‘desperate’. Also, the ET found that the company’s evidence as to why a pay cut was necessary ‘lacked cogency’ and concluded that it was reasonable in the circumstances for Mr Booth to seek to preserve the terms and conditions he had enjoyed for many years.

The EAT held that the ET had erred in a number of ways when deciding that Garside & Laycock had acted unreasonably in dismissing Mr Booth. Firstly, Catamaran v Williams does not establish a test that a dismissal will only be fair if a business is in such a desperate financial situation that the proposed pay cuts are the only way to save it.

Secondly, the ET had taken the wrong approach when it had asked what it was reasonable for Mr Booth to do in the circumstances. Section 98(4) of the Employment Rights Act 1996 provides that the focus should be on whether the employer, having established some other substantial reason for the dismissal, acted reasonably or unreasonably in treating the reason as sufficient to dismiss the employee.

Furthermore, the EAT disagreed with the ET’s finding that Garside & Laycock’s approach lacked ‘cogency’. Taking the word as defined in the Oxford English Dictionary, there was nothing lacking in cogency in a business facing trading difficulties seeking to reduce its costs, nor in trying to ensure that all members of staff were remunerated on the same pay scales without one employee being paid more because he had rejected terms and conditions accepted by the others.

Under Section 4A of the Disability Discrimination Act 1995 (DDA), employers had a duty to make reasonable adjustments to working practices in order to ensure that a disabled employee was not disadvantaged. Under the Equality Act 2010, which has now replaced the DDA, this duty remains largely the same.

In a recent case (Tameside Hospital NHS Foundation Trust v Mylott), the Employment Appeal Tribunal (EAT) held that an employer’s failure to take steps to facilitate a disabled employee’s application for ill health retirement was not a breach of Section 4A of the DDA. Whilst upholding other findings of disability discrimination against the Tameside Hospital NHS Foundation Trust, which related to its handling of Mr Mylott’s situation when he was absent from work for a long period with work-related stress, the EAT overturned this aspect of the judgment of the Employment Tribunal. In the EAT’s view, the duty under Section 4A did not extend to enabling a disabled employee who was no longer able to do their work (or any available alternative) to leave their employment on favourable terms. The whole concept of an adjustment is that it is made in order to make it possible for the disabled employee to remain in employment. It does not extend to taking steps to ensure that they are compensated for no longer being able to do so.

Says Nick Fentiman, “Whilst this decision clarifies the scope of an employer’s duty to make reasonable adjustments for a disabled employee, long-term sickness absence is a difficult area of the law and we strongly recommend that you take advice based on your specific circumstances before taking any action.”