We will look at managing difficult people in the workplace.  Phil Jones from Workplace Dynamics will lead an interactive session looking at:

Cate has a nationwide repuation for her expertise in issues that impact on elderly people, including problems accessing NHS or [...]]]> Cate Searle is running a  legal advice clinic with Age Concern helping people with a range of legal issue

The most immediate change (from April 6, 2012) is the increase to the qualifying period for an employee to bring a claim of unfair dismissal from one to two years. [...]]]> The Coalition Government announced in 2011 that it wanted to reform and simplify employment law and reduce red tape for business.

The most immediate change (from April 6, 2012) is the increase to the qualifying period for an employee to bring a claim of unfair dismissal from one to two years. The Government says this will ‘provide more time for employers and employees to resolve difficulties, give employers greater confidence in taking on people and ease the burden on the Employment Tribunal process’.

But few employment lawyers believe this move will have the intended consequences. And I am one of them.

Employers employ and cut staff because of the needs of the business, not because they fear the costs involved in dismissing them. No employer likes hiring someone, then having to let them go when money gets tight. What would have a far greater impact on employment numbers would be tax breaks for employing more people.

When it comes to under performance, new recruits who do not perform can be perfectly well managed within a six-month probation period. One year is more than enough time for an employer to judge an employee’s competence. Is it too much for an employee to expect to be treated fairly having worked for an employer for a year?

But on top of the questionable ability of these proposals to deliver the results the Government is looking for, there is a huge risk they will cause confusion and lead to an increase in more complicated claims in the Employment Tribunal. Unhappy employees, who believe they have been treated unfairly, but have been employed for less than two years, will have no option but to try and prove that their dismissal was due to their protected characteristics – such as race, sex etc – or for whistle blowing or for raising health and safety issues. None of these claims has a length of service requirement.

In addition, we still do not know whether there are going to be any transitional arrangements. If there aren’t, this will mean that employees who currently have one year’s qualifying service on 6 April will lose their right to bring a claim until they have two years qualifying service!

More in my next post on the Government’s other intended changes in 2012, including its fundamental review of Employment Tribunal fees, a proposed consultation around ‘protected conversations’ and its surprising intention to review the Acas disciplinary and grievance procedures.

Cate Searle will be available to answer legal questions and provide information about care funding and access to NHS and social services (including NHS continuing healthcare).

The [...]]]> Carers can get their legal questions answered at a free Carers Centre legal advice clinic in Brighton on Thursday, January 19  2012 (10.30 am).

Cate Searle will be available to answer legal questions and provide information about care funding and access to NHS and social services (including NHS continuing healthcare).

The clinic is at Community Base, 113 Queen’s Road, Brighton.

Due to limited availability, appointments must be booked in advance by calling the Carers Centre on 01273 234045 or email info@thecarerscentre.org.

The Carers Centre for Brighton & Hove is a local charity which supports anyone caring for a partner, relative or friend who needs help because of illness disability, substance misuse or old age.

Fiona Martin, head of the employment team at martin searle solicitors, [...]]]> The HR Digital Media Group will explore the subject of Managing Ill-Health and Disability in the Workplace at its next meeting on Tuesday, November 15, 2011 (9.30am – 11.30am). The meeting will be at Madgex’s North Street offices in Brighton.

Fiona Martin, head of the employment team at martin searle solicitors, will lead an interactive session looking at what constitutes a fair and legally compliant process when it comes to managing ill-health and disability at work including:

• Back to work interviews
• GP fit notes
• Reasonable adjustments

Using case studies based on real situations to explore the issues, Fiona will also encourage group members to share experiences and best practice advice.

The HR Digital Media Group is backed by Wired Sussex and welcomes business owners, HR managers, directors and employees responsible for personnel issues who work in the digital media sector. The group’s bimonthly meetings are an opportunity to confidentially discuss issues which have the most impact on the digital media sector and to share best practice approaches and polices.

Events are free to members. Membership costs £25 for the year.

To join or book contact Caroline Morris at Wired Sussex on 01273 692888 or email caroline@wiredsussex.com.

Why you might need a possession order

Sadly it is an all-too-common experience for landlords to have tenants who fall into rent arrears. Dealing with [...]]]> This guide offers practical advice on dealing with a continual shortfall or non-payment of rent from your tenants, including using a possession order or accelerated possession order.

Why you might need a possession order

Sadly it is an all-too-common experience for landlords to have tenants who fall into rent arrears. Dealing with rent arrears is not always straightforward. While some tenants do make up the arrears over time, many do not and landlords quickly lose money on their property. Obtaining a possession order can sometimes be the only long-term solution.

This guide gives you information on the two possession procedures you could follow: a possession order or an accelerated possession order. Once you have decided to seek a court possession order, timing is extremely important as the wrong notice period will mean the notice requiring possession will fail.

To speak to an expert in possession claims including an order of possession or an accelerated possession order, please call Cate Searle on 01273 609911 to arrange a discounted fixed fee interview. Cate is an expert in possession and accelerated possession procedure. She will ensure you circumvent the difficulties surrounding a notice of possession and that the order of possession you require will not fail.

Or find out more about how we can help you defend your landlord rights.

Possession claims − fault-based possession claims and accelerated possession procedure

Since February 1997, the majority of private residential tenancies have been Assured Shorthold Tenancies (ASTs). There are two routes of seeking possession in such cases: fault-based possession claims and accelerated possession claims. It is up to the landlord to decide which route they want to follow and each has important consequences.

Fault-based possession claims (Section 8 claim)

This claim arises when the tenant has broken the terms of the tenancy agreement and/or their statutory obligations. Identifying the right grounds of possession can be complex and you should seek specialist advice in all cases. In rent arrears cases the main grounds are:

• Two months’ (or eight weeks’) rent arrears – a mandatory ground
• Rent arrears of less than two months (or eight weeks) – a discretionary ground
• Persistent delays in paying rent – a discretionary ground

Frequently asked questions about fault-based possession claims

Q: What Notice must I give the tenant before I can go to Court?

A: The Notice period can differ and it is vital to get this right in your Notice requiring Possession, otherwise your claim will fail. Always seek advice if you are not sure how much Notice to give.

Q: How long does will it take for the Court to deal with my claim?

A: It can take several weeks for even an undefended claim to be dealt with. A defended case (or a case involving a counterclaim) could drag out for many months. A Court hearing is needed in all cases.

Q: If I have followed the correct procedure, am I certain to get a possession order?

A: No – not unless you have a mandatory ground for possession (ie there are two months’ rent arrears). Where there are less than two months’ rent arrears the Court must be satisfied that it is ‘reasonable’ to make the order.

Q: What could the tenant do to avoid possession being ordered?

A: The tenant could raise any number of defences, such as: ‘I don’t owe the money’, ‘I have paid the rent and my landlord has made a mistake’ or ‘I do have arrears but it would not be reasonable for the Court to order possession’. The tenant could challenge the validity of the Notice that was served, or deny getting Notice. In addition, there could be counterclaims – for example, ‘the property is in disrepair’.

Q: How much does it cost?

A: The cost depends on the circumstances. If the claim is not defended, the legal costs can be limited to the court fee and one to two hours’ work. If the claim is defended and/or there is a counterclaim, the legal work will be greater: three to four hours or even longer. Some of these costs may be recoverable from the tenant if you are successful.

Q:  How soon will the Court order possession?

A: Again this depends on the circumstances: usually 14 days after the hearing, but it can be longer.

Q: Will I get my rent arrears back?

A: You will get a money judgment against the tenant ordering them to pay back the arrears. This type of claim allows landlords to recover both possession and any rent arrears due – but unfortunately many tenants do not comply with the money judgment. A legal expert can help you recover as much of the arrears as possible.

Accelerated possession claims (Section 21 claim)

An accelerated possession claim can be used in most cases where the fixed term of the tenancy has expired and you have protected the tenancy deposit. There is no need for the tenant to have breached their tenancy agreement or have rent arrears.

Frequently asked questions about accelerated possession claims

Q: How much Notice must I give the tenant before I can go to Court?

A: Two months. Again it is vital that you serve the right type of Notice of Possession at the right time – otherwise the Court will reject the case.

Q: How long does it take for the Court to deal with my claim?

A: Although called ‘accelerated’, the process is not always speedy and it can take up to eight weeks. When the Court receives the papers, it sends them to the defendant and unless a valid defence is then raised, the Court makes a possession order without the need for a hearing. The tenant can ask for a hearing to have more time at the property.

Q: If I follow the correct procedure, am I certain to get a possession order?

A: Yes.

Q: What can the tenant do to avoid possession being ordered?

A: Unless the tenant is able to show that you got something wrong with the Notice or claim form, or did not register their tenancy deposit, the Court must order possession.

Q: How much does it cost?

A: Legal costs are normally limited to the court fee and no more than two hours’ work.

Q: How soon will the Court order possession?

A: Normally 14 days after the tenant returns the Reply Form to the Court, but it can delay possession for up to 42 days.

Q: Will I get my rent arrears back?

A: No – the Court can only order possession and any claim for rent arrears must be pursued separately.

Choosing the most useful route of possession

For most landlords, the route of possession they choose depends on:

• How quickly they want the Court to deal with their case, which must be considered against the longer notice period
• Whether their aim is simply to get the tenant out

• Whether they want to recover rent arrears at the same time (and how solvent their tenant is)

• If the tenant might have a defence or counterclaim, or may seek to raise one simply to draw out the process

The right legal advice on your possession claim

Legal advice on possession claims should cover the following essential points:

• Clear and practical advice about the landlord’s options
• Which type of possession claim best serves the landlord’s interests
• Drafting and serving the correct Notices to tenants at the right time
• Issuing possession claims at Court
• Dealing with defences and counterclaims effectively
• Providing an advocate at Court to obtain a possession order on the most favourable terms
• Recovering costs
• Enforcing court orders against tenants

Would you like to talk to a specialist in possession claims?

The housing law team at martin searle solicitors has experience of acting for both landlords and tenants in possession claims throughout London and the south.

We undertake work at a fixed fee, which is set according to the amount of assistance landlords need. If you have appointed a letting agent to manage your property, we can also work with them in a way that can reduce cost. For further information contact Cate Searle at martin searle solicitors on 01273 609911 or email Cate@ms-solicitors.co.uk

Background to the Employment Tribunal costs award

In early 2010 Paul Smith, Managing Director of Brighton-based Swim UK, found his [...]]]> What Marsha Thompson did to successfully defend an unfair dismissal claim brought by two employees against Swim UK. And why the Employment Tribunal made a costs award against the claimants.

Background to the Employment Tribunal costs award

In early 2010 Paul Smith, Managing Director of Brighton-based Swim UK, found his workload was drastically increasing. He hired a PA to help.

However, when Bobbi*, the new PA, joined she quickly became the target of unpleasant comments and harassment by two male colleagues. As 2010 drew to a close, their bullying behaviour culminated in Bobbi being humiliated in front of her colleagues.

That same evening, she was also the subject of violent and threatening comments on Facebook. As the perpetrators were both Facebook ‘friends’ of the Swim UK Facebook page, these comments were widely seen by clients as well as colleagues.

The next day Bobbi showed Paul the obscene and violent comments explaining that she was frightened of the people behind them. It was also clear the comments would have a negative effect on the business’s reputation.

Paul immediately began an investigation which led to him implementing the disciplinary procedure. After these fair and thorough processes, the two employees were found guilty of gross misconduct and dismissed summarily without notice. They both appealed his decision but were unsuccessful. They subsequently lodged Employment Tribunal claims on the grounds that they had been victims of discrimination and unfairly dismissed.

*Not her real name

What we did

Paul came to see Marsha Thompson in our Brighton solicitors’ office when he received notice of the claim against the business. After reviewing the facts, Marsha advised Paul that she considered the dismissals to be fair.

Fortunately, Paul had bought legal expense insurance to protect his company. Paul was advised by Marsha that he had the right to instruct his own solicitor, rather than use the insurance company’s in-house solicitor so he instructed Marsha to represent his company in defending these tribunal proceedings.

Due to the nature of the claim, Marsha wrote to the claimants at an early stage putting them on notice that they were at risk of a costs order being made against them at a hearing. She also invited them to withdraw.

Costs are not usually awarded, even if an employer successfully defends a claim. However, in cases where the employee has acted unreasonably − including acting abusively, disruptively or bringing a claim which is misconceived as it has no merit − the employer can apply for their Employment Tribunal costs.

In Swim UK’s case the former employees insisted on pursuing their claims for unfair dismissal and discrimination although they later withdrew their discrimination claims at a pre Hearing review.

Result

Paul succeeded in defending all claims and the tribunal made a finding that the claimants had been fairly dismissed.

Most importantly, it found that their claims were unreasonable and vexatious. As a result, the Judge made a costs order against both claimants ordering them to pay £3,000 each towards the company’s legal costs.

Tribunals are increasingly making costs awards where either party act unreasonably in bringing or defending claims. However, to be able to make a successful application your representative should issue cost warnings as early as possible. This allows the Judge to see that the claimant or defendant had the opportunity to withdraw without costs consequences at an early stage and that they knew of the likelihood of a cost award if they chose to ignore the warning.

These types of judgements will hopefully be a deterrent for both employees and employers who vexatiously bring and/or defend claims which should have been withdrawn or settled out of court.

The clinic gives people with mental health issues advice and support to tackle their employment law concerns, including help with workplace discrimination.

To book an [...]]]> martin searle solicitors’ Croydon office is running a free employment law advice clinic with ESRA (the Employment Support Retraining Agency) on Friday, January 27, 2012, 9.30am to 12.30pm.

The clinic gives people with mental health issues advice and support to tackle their employment law concerns, including help with workplace discrimination.

To book an hour appointment with employment law solicitor Marsha Thompson contact ESRA on 01737 772115 or email graham@esrasurrey.co.uk.  The clinic is at ESRA’s Redhill office, Rawlinson House, London Road.

Find out more about martin searle solicitors in Croydon.