The Supreme Court has now ruled that the disease can be said to have been “sustained” by an employee in the period when it was caused or initiated and therefore insurance liability is placed when the Claimant inhaled asbestos fibres and not when the symptoms appeared.

One of the judges, Lord Clarke, said: “The negligent exposure of an employee to asbestos during the [insurance] policy period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurer’s obligation.”

The new ruling is likely to affect thousands of others and will not only apply to those who already have asbestos related illness but also the thousands who will sadly be diagnosed in the future. The decision will mean that Claimant’s can now make claims on insurance policies dating as far back as the 1940’s.

Should this article affect you then do not hesitate to contact our specialist team for further information.  Call Christine Sands on 01977 518778

The Agency Workers Regulations 2010 (AWR) came into effect on 1 October 2011.  The aim of the Regulations is to ensure that agency workers are receive equal treatment in terms of basic working and employment conditions as if they had been employed directly to do the same job.  Many employment agencies seek to avoid the impact of these Regulations by entering into contracts of employment with the temporary staff on their books and then relying on regulations 10 and 11 to claim that therefore they are no longer agency staff.  This may work for some agencies but the exclusion has limited effect and an agency seeking to rely on the provisions should be clear that the contracts they enter into do cover the relevant issues.

Regulations 10 and 11 of the Agency Workers Regulations 2010 specify that the Regulations will not apply in the following circumstances:

• If the worker has a permanent employment contract, which includes the Contractual requirements referred to below, with the agency; and
• That contract was entered into before the assignment was arranged; and
• The worker is paid a minimum amount between assignments; the minimum amount must be at least 50% of the basic pay they receive whilst on assignment and not less than the minimum wage.

These are known as derogation contracts.  To be clear it is a prerequisite that the agency employ the worker.  In this arrangement therefore the worker gains all the usual employment rights.

Contractual requirements

In addition to the usual contractual requirements the contract of employment must include written terms covering:

• The fact that the effect of entering into the contract is that the employee will not be entitled to the right to equal treatment on pay under AWR;
• the minimum remuneration or the method of calculating that remuneration;
• where the agency worker may be expected to work;
• the expected hours of work during any assignment;
• the maximum number of hours of work that the worker may be required to work each week during any assignment;
• the minimum hours of work per week that may be offered to the agency worker during any assignment provided that it is a minimum of at least one hour; and
• the nature of the work that the agency worker may expect to be offered including any relevant requirements relating to qualifications or experience.

Derogation applies to pay only

The fact that an agency worker enters into a “pay between assignments contract”, does not prevent them being entitled to other provisions under AWR. They are still entitled to equal treatment in relation to the duration of working time, night work and rest periods, rest breaks and (unpaid) annual leave after the 12-week qualifying period and to the “day one” entitlements with regard to access to facilities and job vacancies.

Other requirements

1. During any period under the contract after the end of the first assignment, if the agency worker is not working temporarily for and under the supervision and direction of a hirer but is available to do so:

• the Agency must take reasonable steps to seek suitable work for the agency worker;
• if suitable work is available, the Agency must offer the worker to any hirer who is offering suitable work; and
• pay the worker the minimum remuneration for that period.

1. The Agency must not end the employment contract until it has complied with its obligations when the agency worker is not working for a total of not less than four calendar weeks during the contract.
2. The Agency must explain the consequences of a permanent contract to the agency worker so that they make an informed choice

When does the derogation not apply?

• A zero hours contract is not possible;
• If agencies and hirers are thought to have structured arrangements so as to avoid the protection given to workers of pay between assignments this could lead to a legal challenge.
• If there is no contract which incorporates the required terms.

This note covers only derogation contracts.  If you would like us to draft you a clause to include in your contracts of employment please request a call-back on our website (www.jordanssolicitors.co.uk) and write in the enquiry details ‘agency workers derogation clause’.  We will then contact you, take a credit card payment and e-mail you the draft clause.  Our fees for providing the draft are £35 plus VAT for a standard form draft where you complete the blanks.  Our standard clause satisfies the requirements of the Regulations.  The fee does not include provision for advice, including advice on implementation or whether such a contract is suitable or appropriate in any particular case.  If you would like us to advise you please contact us and we will agree a fee for that advice.

If you would like to discuss the Regulations and the requirements of the generally please contact Debbie Mactaggart, Head of Employment, Jordans Solicitors, Wakefield.

Phoneline open until 9pm weekdays and 9.30am – 1pm Saturdays. Website contains factsheets and guidance.

Advice covers – debt advice, insolvency, bailiff attendances, court enforcement action related to debts (charging orders, attachment of earning etc.), rent arrears, possession claims for non payment of rent, council tax/utility arrears

2. Shelter – 0808 800 4444 – www.shelter.org.uk

Phoneline open 7 days a week. Website contains useful factsheets and guidance.

Advice covers – homelessness, evictions (council and private landlords), mortgage repossessions. How to find somewhere else to live.

Useful for – anyone needing guidance on whether they can be evicted from their home. They can also help negotiate with the landlord to try and allow tenants to remain in the property.

Also, for advice local to the Wakefield or Dewsbury area on housing, you can contact:
• Springs Advice Centre, Wakefield – 01924 302085
• CHAS Housing, Dewsbury – 01924 324 990

3. AgeUK – 0800 169 6565 – www.ageuk.org.uk

Phoneline open 7 days a week between 8am – 7pm. Website contains impartial and informative factsheets and advice guides on a variety of topics aimed towards older people.

Advice covers – money matters, health, home & care, work & employment, wills & pensions.

Useful for – somewhere to start to get initial advice on all those issues facing older members of the community.

4. Consumer Direct – 08454 04 05 06 – www.direct.gov.uk

Phoneline open Monday to Friday 9am – 5pm. Website contains information on a wide range of consumer issues, including excellent template letters.

Advice covers – consumer rights on buying goods & services, buying a car, personal finance, protecting yourself from scams, doorstep & internet selling, holidays & travel, energy bills

Useful for – learning what your consumer rights are & taking practical steps to rectify your problem

5. Financial Services Ombudsman – 0800 023 4567 – www.financial-ombudsman.org.uk
Phoneline is open Monday to Friday 9am – 5pm and is a consumer helpline for advice on individual complaints against financial bodies.

The Ombudsman is an independent and impartial agency set up to deal with complaints on a wide range of financial matters, including banking, insurance, mortgages, credit cards, loans, savings, shares, hire purchase, pensions

The Ombudsman was established by Parliament and therefore, there are strict rules and timescales about bring complaints, which you will need to check with the body itself.

6. Insolvency Service – 0845 602 9848 – www.insolvency.gov.uk

Phoneline open Monday to Friday 8am – 5pm. Website contains advice on all insolvency issues, whether it be for an individual or related to a company, including the relevant forms.

Advice covers – bankruptcy, alternatives to bankruptcy, redundancy, director disqualification or restrictions, company administration, company liquidation

Useful for – guides on how to petition for your own bankruptcy or company liquidation or how a creditor could do this, also the impact of bankruptcy on your assets and life.

7. HM Court & Tribunal Service – www.hmcourts-service.gov.uk

Website has a CourtFinder facility which allows you to search for the address and contact details of all courts in England & Wales.

There is also a FormFinder facility which allows users to download court advice guides and court forms.

Useful for – guidance on attending court, details of courts and tribunals, obtaining free copies of court leaflets & forms

8. Companies House – 0303 1234 500 – www.companieshouse.gov.uk

Phoneline is open Monday to Friday 8.30am – 6pm. Website contains full information on setting up companies, including a Webcheck service for searching for information on companies.

Advice covers – company incorporation, strike off, dissolution, limited liability partnerships, overseas or cross border companies registered in UK

Useful for – searching for company addresses, obtaining information about company directors, annual accounts

9. HM Land Registry – 0844 892 1111 – www.landreg.gov.uk

Phoneline is open Monday to Friday 8am – 6pm. Website contains a wide range of forms, guidance and publications aimed at both the public and those in legal practice.

Advice covers – land registration, adverse possession, obtaining land registry office copies, leases, rectifying title, rights of way, joint ownership of property, bankruptcy & land

Useful for – an overview of the potential issues effecting ownership of land

Step One

In order to resolve a dispute, you first need to let the other party know that you are unhappy with the situation you find yourself in. This could be because you are not satisfied with an item you have bought or a service that has been provided to you. The other party is not going to take any steps to rectify matters for you unless they are aware that you actually have a problem. You can complain in person, by telephone or in writing; however, it is important that you keep a log of what it said, to whom and when.

It is good practice when complaining to establish the following:
1. Who to address your complaint to within the organisation you are complaining to. Normally correspondence will be sent to the Complaints Department, but it is worthwhile getting hold of the name of a manager or person of authority who deals with complaints so that you can address your complaint to them personally.
2. Establish whether the organisation you are complaining to has a written complaints process. If it does, obtain a copy of the complaints process and follow it.
3. Keep hold of all documentation in relation to the complaint to evidence your case. This may include quotations, photographs of the problem, correspondence, receipts, invoices or bank statements. You may need to provide copies of these to the organisation to support your arguments.

Some good tips to follow when complaining are:
1. Make sure you quote the organisation’s reference number when complaining so they are able to match your complaint up with your order
2. If you are complaining by phone or in person, take down the full name of the person you are speaking to and their position within the organisation
3. Explain what has happened, when and who was involved
4. Explain what steps you have already taken (if any) to resolve the complaint – mention any people within the organisation you have already spoken to
5. Say what action from the organisation you are looking for to resolve your complaint
6. Give the organisation a timescale to respond, for example, 14 days
7. Make a note of when the meeting or telephone call took place or alternatively, if the complaint is in writing, keep a copy
8. Make a note of the organisation’s response or keep copies of their correspondence

Step Two

If once you have notified the organisation of your complaint, you do not receive a satisfactory response; you should follow up your complaint in writing. This letter should clearly set out that you are not happy because:
1. The organisation have failed to respond to your complaint at all; or
2. The organisation have responded and proposed a course of action to resolve your complaint, but you are not satisfied with what has been offered; or
3. The organisation have responded but have denied you have a valid dispute
This then clearly notifies the organisation that you are not happy with what has been offered and that you intend to pursue the matter further.

Step Three

You can then take steps to complain to a third party about the organisation. If you have paid for the goods or service by credit card or loan, you can complain to your finance company. Many organisations are members of professional bodies or trade associations and you should take steps to establish there is a professional body or association that regulates the organisation and that will deal with your complaint. Check and see if the organisation is a member of a body, such as the Office of Fair Trading. Certain sectors also have ombudsman services that will deal with complaints. Examples of these include: Ofcom, Ofgem, Financial Services Ombudsman and Otelo.

Step Four

If you have reached the point with your complaint where you have explored the above steps and still have not reached a resolution, it may be time to meet with a legal professional to discuss your complaint further to find out if Jordans could assist you. Instructing a solicitor is not always the right course of action for every complaint and our expert team will be able to advise you on your next step. This may be advice on pursuing the complaint further yourself; instructing a solicitor to do this for you; or pointing you in the right direction to get an expert report to assess whether you complaint has merit or not. Jordans will give you pragmatic advice based on the complexity of the dispute; the value at stake; and the reality of achieving your desired result.

Landlords are keen to fill their properties and many find that prospective tenants drive a good bargain on the rent and other terms. Often tenants want flexible terms and short lettings whilst they try their hand at a new venture. In these types of situations it is easy to skip issuing a lease to save on the cost of having one prepared.

But is this a good idea? The answer is no.

Leases protect both the tenant and the landlord. They set out the rent that must be paid, allow landlords to review the rent at regular intervals and charge interest on late paid rent. They set out the fixed term for the lease giving tenants security of occupation should their business being to flourish and give the landlords the security of knowing their tenant is contractually committed to your unit.

Landlords can specify what business activities are to take place at the premises which can be good if a landlord occupies a nearby unit (you don’t want your tenant competing against you by running a similar same type of business to yours) or if you own a few units in a street. Changing the use of the premises requires the landlord’s permission, as does subletting the premises to someone else.

If your tenant is going to want to stay in your premises for a longer period, your lease can specify who is to carry out repairs at the premises and when a tenant comes to leave, you can make sure the building is left in a good state of repair and condition making it easier to let out again to a new tenant.

The main problem with having no lease is place is the state of mind this often gives to tenants. Because they have not been asked to sign anything confirming their occupation of your premises this can often make them believe the terms are flexible and that they are not tied into the premises in anyway. It can give your tenants the wrong impression.

When it comes to protecting your rights it is always better to have a lease in place and can save you the time and money when you come to enforce payment of rent arrears. If you would like to discuss the issues raised in this article further please contact Susan Lewis.

Two or more friends/colleagues/acquaintances going into business together, pooling resources to maximise results and each sharing a mutual passion and willingness to succeed. In the excitement of the moment it is easy to get carried away and forget about documenting basic terms of your agreement. You are in a hurry to start making money and think there will be time later to bottom out the finer details with your business partners later. You all want to achieve the same time so what can possibly go wrong?

If everyone pulls their weight and the money starts to roll in there may not be a problem. But what if someone starts to slack off? Maybe you feel like you are the only one generating the sales leads? Sharing the profit 2/3 or more ways might start to grate after a while. Maybe one of you wasn’t quite as certain as you that the new business venture would succeed and might have another business idea on the side just in case your venture did not succeed. This might be distracting their attention away from your business.

Whilst lawyers might be accused of dampening entrepreneurial passion by weighing you down with reams of papers, there is an important reason why we advise clients to document their partnership agreement, and indeed any form of agreement. We want to protect you when you are faced with difficult times.

By documenting your partnership agreement you are making up your own rule book deciding who will take on which roles, how much effort and/or financial input you will all have to give, how that profit will be shared and on what basis and how problems can be resolved if you hit a bump in the road. Without a partnership agreement disputes can be far harder and more complicated (and expensive) to resolve.

If you are in the early stages of discussing an idea for a partnership venture please contact us today. If you are some way down a partnership you can still have a partnership agreement drawn up if you all agree to sign it. If you find yourself in the middle of a dispute, contact us today for further assistance.

Local authorities have wide powers under the Building Act 1984 and the Town and County Planning Act 1990 to target such buildings on the grounds that they might be dangerous or else their state and condition has a severe detrimental impact upon the amenity of the local area. Local authorities can serve notices upon the owners and any occupiers of such buildings requiring them to carry out expensive and extensive repair works or even to demolish the building.

You have the right to appeal against such notices and must do so within a strict period of time of being served with the notice. It is important that you take legal advice once you have been served with an enforcement notice to ascertain whether you have any grounds to challenge the service of the notice.

In most instances the local authorities will contact you in writing before they decide to serve you formally with an enforcement notice. It is important that you respond to such correspondence in a positive manner and engage in a dialogue with the local authority; you may be able to agree how to address their concerns about the state of the building to avoid formal action being taken against you.

For further advice regarding this issue please contact Susan Lewis.

Unfortunately, there is no recipe for guaranteeing payment but here are some tips which might improve your chances of being paid and being paid within a reasonable time period.

1. Know your customer. Doing a small amount of research on a prospective customer can pay dividends. There is a lot of information available online at Companies House if you are working for a company. Indicators of potential problems can be late filing of accounts or petitions to strike off the company on the Companies’ register. Credit checks can now be obtained cheaply and quickly with the credit agencies that score companies on their payment records.

2. Don’t be afraid to say no. We all want work and turning away a prospective customer can feel like going against the grain. In reality, we all want customers who will pay. If your research or industry gossip tells you they are bad news consider very carefully whether to accept their business. If you do, can you ask for payment up front?

3. Terms and conditions. You should have terms of business which set out how you are going to perform your contract, when you expect to get paid and allow you to charge interest on late payments of invoices. They can help you to maximise the most out of each contract. Check if yours should be updated today.

4. Agree the scope of work. It is always better to be very clear with your customer about what you are going to do so they know what to expect. If you are not going to meet their expectations, be honest and tell them so. Explain why their turnaround time cannot be achieved. They may be able to alter their expectations. Gumbles over the work you do can cause problems when you look to be paid and can give your customers unnecessary scope for complaints.

5. Payment terms. Many industries operate on credit terms. Be realistic about the terms you can offer within your industry but be clear with your customer that the terms cannot be exceeded. Monitor credit accounts to make sure you know who is exceeding credit terms and by how much. If the same customer is asking you to do further work consider whether you can ask them to clear their account before you begin on their next project or order. A gentle prompter each month by sending out statements of account help but you may need to be firmer with the persistent late payers. You may want to consider more creative ways of getting paid on time. Agreeing fixed monthly payments might help both businesses cash flow where you are receiving regular orders from customers. Offering a small discount for early settlement can also be a great incentive for prompt payment.

For further information please click on the work types or contact Susan Lewis for a no- obligation discussion of how Jordans’ Litigation Team can assist you today.

This is a professional negligence case against a firm of solicitors. The facts of the case were as follows:

Two companies, Levicom and NetCom, had become embroiled in dispute. Levicom felt that Netcom had breached a shareholders agreement to which each were party that served to regulate the affairs of a Baltic Telecoms company. Levicom argued that Netcom were in breach of the shareholders agreement by subsequently buying a separate telecoms company trading in the Baltic region.

Netcom offered terms to settle, but Levicom approached Firm X for advice as to what their prospects of success would be should they wish to bring an action against Netcom. The advice from Firm X was positive. Levicom were told they had not less than a 70 percent chance of success should they wish to commence arbitration against Netcom and that they should reject Netcom’s offer. Levicom did therefore arbitrate, but as time went by, the advice from the solicitors became less strong. Eventually, Levicom accepted an offer from Netcom which was not as good as the previous offer.

Levicom sued Firm X. It argued that if the solicitors’ initial advice had not been so positive, they would have accepted the initial offer and would not have arbitrated.

The Court of Appeal held on the facts that the advice given was negligent, as whilst Firm X’s analysis of the construction of the Shareholders agreement was one possible interpretation, they should not have advised that it had such high prospects of success, and shouldn’t have advised Levicom to reject Netcom’s original offer.

The interesting point is that Levicom succeeded in showing that the negligence caused the loss. The argument could be raised that even if correct (more cautious) advice had been given, Levicom would still have rejected the initial offer and arbitrated. The Court of Appeal found that there was good evidence to show that Levicom would not have proceeded with arbitration if the advice was not so positive. Further, the Court of Appeal felt that it was for the solicitors to show that its advice did not cause Levicom to arbitrate. They did not do so.

It appears also that the Court were influenced by the fact that the solicitors involved were a large London firm. As Lord Justice Stanley Burnton stated, “one has to ask why a commercial company should seek expensive City solicitors’ advice (and do so repeatedly) if they were not to act on it.”

It is unclear whether the Court is drawing a distinction on causation between the larger City solicitors’ firms and others, and whether the test on causation on this point is thus more difficult for the larger firms to overcome, but what is clear is that all professionals should provide their advice carefully in a reasoned manner following thorough analysis of all the facts and evidence. If they fail to do so and the client suffers loss, they open themselves up to a potential professional negligence claim, and can not rely with all certainty on a court subsequently blindly accepting the submission that the client would have followed the course it did irrespective of the advice given.