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Preventative injunctions are increasingly being used to protect public spaces against being used for encampments. Gareth White, Associate in Coodes Solicitors’ Commercial Disputes team, says that they can be an effective way of protecting private land against trespassing and fly tipping.
In recent months, a number of local authorities, mainly in the South East, have adopted a more proactive approach to protecting public spaces against being used by travellers for encampments. Preventative injunctions are also being used to protect land against commercial fly tipping, a growing problem that costs local authorities estimated costs exceeding £50million.
Councils including the London Borough of Hillingdon and the London Borough of Richmond upon Thames, have put in place preventative injunctions, sometimes known as green space injunctions, to protect public spaces. The approach has mainly been used in parks and other green spaces but is now also being adopted for ‘brown spaces’, such as car parks.
Preventative injunctions are granted by the High Court. They enable the landowner to put in place a ruling against ‘Persons Unknown’ from using the land in a particular way. Rather than reactively dealing with any named individuals who have already occupied the land, the landowner proactively states that anyone who breaches the terms of the injunction will face legal action.
Without having a preventative injunction in place, the local authority or landowner generally has to go through a long legal process of identifying the individuals involved before taking action. Having a preventative injunction means anyone who uses the land unlawfully has automatically breached a High Court injunction and could therefore be subject to fines or imprisonment.
Why developers are using preventative injunctions on building sites
Although these preventative injunctions are mainly associated with local authorities, they are also increasingly being used by developers to proactively deal with trespassing on building sites.
Developers who are concerned about damage being caused by trespassers are displaying notices to inform the public that they will be breaching an injunction if they break in and enter the site. Large developers are now starting to adopt this approach and I have seen a number of examples in the north of England. With so much development planned here in the South West, I expect to see more developers taking this approach.
Could preventive injunctions help landowners protect against trespassing?
Trespassing is a perennial problem for landowners, with some forms of trespass being civil wrongs while others, including those involving squatting, are criminal offences.
As awareness grows of the use of preventative injunctions to protect green spaces, I suspect more landowners will start to investigate the potential for adopting this approach. In particular, it could be an effective way of dealing with the growing problem of fly tipping. According to recent news reports, each year almost 5,000 fly-tipping incidents are reported to Cornwall Council with clean-up costs of almost £400,000.
Applying to the High Court for a preventative injunction against persons unknown for occupying their land, could provide landowners with a more proactive way of dealing with the problem.
Corporate and commercial lawyer and partnership specialist Kirsty McAuley looks at a recent case that will resonate with farming businesses.
Discussing the structure of your farming business and your plans for the future can often seem like an administrative burden and something that can wait. A recent high profile legal case provides a hard-hitting example of what can go wrong when these discussions have not been had and illustrates the importance of having a good understanding of the business and a properly drawn-up farming partnership agreement.
Generation to generation
The case of Wild v Wild (2018) EWHC 2197 (Ch), is a fine example of what can go wrong when a farm is left to just tick along without anyone sitting down and dealing with the detail.
It involved a dairy farm in Derbyshire, which the Wild family had run together for decades. The farm was originally held by the father, who owned it in his own right, before the introduction of his sons at different stages.
When the partnership was created there was nothing to show that the land had been transferred to the partnership and no formal discussions regarding ownership were had. The father had died in 2003 leaving the two brothers in the partnership. There was no partnership agreement but only a series of accounts, the earliest of which dealt with a period around a decade after the partnership came into being.
A dispute ensued concerning the ownership of the farmhouse and a farm bungalow. In the absence of a written partnership agreement, it was unclear whether or not the farm property was held by the partnership or by their mother, who had inherited the farm from her deceased husband. The matter was further complicated by the fact that one of the brothers had invested his time and money in renovating the bungalow, in which he lived.
An entry was included within the accounts for “property” as a fixed asset with a value of £40,000, which did not provide any clarity to the matter and was a major part of the litigation. A properly drawn-up farming partnership agreement would have clarified ownership of each property, avoiding a painful and expensive legal battle.
Partnership property, accounts and business efficacy
In the absence of a partnership agreement, the Partnership Act 1890 is the relevant statute that must be considered. Under section 20(1) partnership property includes property that has been “brought into the partnership stock”. There are very few cases testing this part of the act which creates a problem for anyone seeking to interpret its operation.
There are certain undisputed factors that will be considered in seeking to apply this section. One is that use of the asset by a partnership is not in itself sufficient to bring about a change in ownership. It is also not conclusive to argue that something is a partnership asset due to the fact that it creates profits for the partnership business. The accounts may also not be used alone to argue that something is or is not partnership property. In the Wild case it could not be argued that the land was partnership property simply because it was being used and was a factor in creating profit.
We do know that the courts will not imply terms into a partnership except those that are absolutely necessary to give “business efficacy” to their arrangements. Looking at it another way, could the partnership get along just as well if permitted to use the asset in a different way? If considering a dairy farm such as that operated by the Wild family, it is clear that they would be prevented from operating the business without the stock but arguably could have carried on using the property under licence. The farm business could have carried on in the same way had the father retained ownership of the farm by simply granting a licence to the partnership.
We also need to keep in mind the facts of this case. The first son that was brought into the business structure creating the partnership was 16 years old at the time. The judge considered that it would be unlikely that the father was giving up absolute ownership of the farm to a partnership in which the partner was his 16-year-old son and also considering that he had another child. The matter would have arguably been much more complex had he been older and also had both sons been introduced at the same time.
The outcome of the case was that “if no partner actually intended the property in question to be a partnership asset the court will not impose a requirement that it be treated as such.” Although any case considering these issues, particularly in the agricultural sector, is welcomed for the purpose of legal analysis, this in my view does not significantly help the case with partnerships as it relies on intention and at the least an understanding between all partners. What is the position if there is no thought or consideration at all? These cases will continue to be left to be resolved between the parties, often favouring settlement rather than becoming the next test case.
The best advice is to make sure that these matters are considered before a dispute or challenge to the structure can arise. Disputes in this area are difficult and fact sensitive, reliant on historic information of the farm that over time is at risk of being lost or forgotten. Do not be caught in a situation where lawyers are trying to establish the facts by seeking out intentions and states of mind from perhaps decades prior to the dispute.
For any help or advice, please contact Kirsty McAuley in the Corporate and Commercial team at Coodes Solicitors on 01326 214034 or email@example.com.
How can a business challenge a decision made through the public procurement process? Abi Lutey, Partner, Commercial Dispute Resolution & Insolvency outlines the basics.
Public Procurement – what is it?
Public procurement is the purchase of goods and services by public sector bodies, including Government departments. In England, procurement is regulated by The Public Procurement Regulations 2015, which were designed to give effect to current EU requirements. The UK’s withdrawal from the EU will have implications for public procurement, though we do not yet know what changes it will bring about.
The regulations do not apply to tenders under £118,133 for central government authorities or £181,302 for other public sector contracting authorities. However, contract decisions that fall under the threshold may still be challenged through the courts.
A lot of time and effort goes into putting together a bid for a public tender. Before making an application, it is important to ensure that you have reviewed the invitation to tender carefully and that you keep a record of your application and any correspondence.
Receiving a decision on your application for a public sector contract
If you submit a proposal for a public sector contract, you will be informed whether or not you have been successful. This will come in the form of an ‘Alcatel’ letter which gives the decision, how it was reached and certain prescribed details of the tender evaluation scores.
Each unsuccessful bidder is entitled to see their own and the successful bidder’s score.
If you want to appeal against the decision, time is very much of the essence. There is a limitation period of 30 days to challenge any public sector procurement process.
The contract may be awarded through what is known as a Competitive Dialogue or a Competitive Procedure with Negotiation. One of these processes can be used if the contract cannot be awarded without prior negotiation because of the nature or complexity of the goods or services required.
Do you need legal advise challenging a public procurement decisionTalk to us today
The Standstill Period
The regulations provide a 10-day standstill period after the decision has been communicated to all the bidders and before the contract is signed. This may be extended upon request. This means you will have sufficient time to and information to enforce your rights, before the 30-day deadline for challenge.
Disclosure in public procurement
The regulations require the public sector authority to retain copies of, and grant access to, documents on contracts. The organisation is required to make and retain tender reports that contain a list of specified details relating to matters including:
The names of selected and rejected tenderers and the reasons why they were successful or unsuccessful.
Details of subcontractors.
Circumstances justifying the use of the competitive negotiated procedure and competitive dialogue procedure.
Conflicts of interest identified, and action taken.
They must also document the progress of tenders. This should include sufficient documentation to justify decisions taken at every stage, such as the preparation of tender documents, dialogue and the selection and award of tenders.
Challenging a decision
If you are unhappy with a procurement decision, you have the right to bring a claim in the High Court, usually the Technology and Construction Court. Proceedings must be started within 30 days of knowing that grounds for starting the proceedings had arisen.
If the High Court rules that the public sector body breached the regulations, your claim may result in one of the following:
An order to set aside a decision of a contracting authority in the course of a tender process.
The award of damages if you have suffered loss or damages as a result of a breach.
The remedy of prospective ineffectiveness of the contract where the relevant grounds are met. This could include, for example, failure to advertise an awarded contract, or breach of the procurement rules matched with a breach of the standstill period.
A financial penalty imposed on the contracting authority.
Before making a claim, it is important to assess whether or not you have any grounds for a challenge. These could include:
Mandatory information required by the regulations to be included in the Invitation to Tender is missing.
The standstill period has been miscalculated.
Different criteria, weighting or scoring has been used than that set out in the initial call.
Knowledge or suspicion that the winning bidder fails to meet the criteria.
Manifest errors in the application of the award criteria
Errors in arithmetic.
In summary it is important to act quickly as soon as you receive the decision notice. That means that getting early sight of key documentation is vital. Consider consulting a lawyer at this early stage rather than leaving matters until the end of the standstill period.
For more information or advice on these issues, please contact Abi Lutey in the Commercial Disputes team on 01872 246200 or firstname.lastname@example.org
Positive discrimination and positive action are not the same thing. Employment lawyer, Philip Sayers, explains why it is important for employers to understand the difference between the two.
Diversity and inclusion in the workplace has been a high profile issue for decades. Although the UK workforce is much more diverse than it was in the past, there is still a push for companies to continuously offer opportunities to all of their employees. A number of policies, laws and initiatives have been introduced to ensure minority groups have equal opportunities when applying for jobs or promotions.
Statistics from the GOV website found that in 2017 the highest rates of employment were found in the White British and Other White ethnic groups, at 76% and 81% respectively. In the same year, 77% of white people of working age were in employment compared with 65% of people from all other ethnic groups combined. This was the highest rates for both groups since 2004.
However, employers have to tread carefully to avoid accusations of positive discrimination when recruiting new talent. It is important for employers to understand the difference between positive discrimination and positive action when looking to diversify their workforce.
Positive discrimination is the process of increasing the number of employees from minority groups in a company or business, which are known to have been discriminated against in the past. In the UK, positive discrimination is illegal under the Equality Act 2010 as it does not give equal treatment to all.
An employer is guilty of positive discrimination if they hire or seek an individual purely based on their protected characteristic, rather than experience or qualifications. Protected characteristics include race, gender, age, disability, religion and sexual orientation.
Positive discrimination also includes setting quotas or benchmarks in the recruitment process, or promoting a specific number of people within a minority group.
What is positive action?
Positive action, on the other hand, became legal in April 2011 to ensure measures are taken to support the recruitment and promotion of underrepresented minorities.
Positive action comes into play when a business is deciding who to hire or promote between top candidates, who are equally qualified. In this instance, an employer can choose to hire an individual from an underrepresented group as long as they are as qualified and fit for the role as the other applicants.
Positive action could also include an employer taking measures to address any imbalance within the company that an employee with a protected characteristic could face. It is designed to encourage and enable members of these groups to overcome disadvantages and avoid discrimination.
There have been calls in recent months for an overhaul of laws regarding positive discrimination. The National Police Chief Council Chair, Sara Thornton, stated that unconscious bias still exists in UK policing and affects promotion decisions. She believes laws should change to allow authorities to favour ethnic minorities when recruiting new employees, as police divisions “will be too white for decades to come” unless new legislation is introduced.
Others argue that if positive discrimination was widely used in the UK workforce and employers could pick a candidate purely based on their age, gender, race or sexuality, businesses could potentially run the risk of hiring people who aren’t right for the job and qualified individuals could miss out on employment opportunities. This is a complex and difficult issue.
It generally makes good business sense for any company to have a diverse workforce. However, it is vital that employers comply with current UK laws and understand the difference between positive discrimination and positive action.
What do businesses in a supply chain need to consider when using contractual protection to shield themselves from potential product liability risks? Partner and Head of Corporate and Commercial at Coodes Solicitors, Sonya Bassett, shares some insights.
Companies that supply, manufacture or create a component of a product have a responsibility to ensure that it is safe for public use. All parties involved in a supply chain are at risk of a dispute with an individual or group, if they provide a sub-standard or defective product.
Liability risks can be managed in a variety of ways, one of which is through contractual protection, where businesses can set out the responsibilities of each party within the supply chain.
Taking the time to create a detailed contract, with the help from an experienced lawyer, will minimise the risk of liability and protect your business.
When drafting a contract, it is important to consider the terms of the agreement, identify the risks and state what your responsibilities include. In a supply chain, one company could be responsible for a specific component while another could have delivered the final product, so their considerations and responsibilities will differ.
Manufacturers, distributors and retailers will all have concerns specific to their role in the supply chain and each party should detail what risks they exclude, accept and cap.
It is important to illustrate the limits of your company’s responsibilities to help outline where any potential fault could lie in the event of litigation. As well as identifying risks, it is also important to consider other ways to minimise risks of something going wrong. Parties can allocate or control risks by:
Conditions and warranties
Limitations of liability
Product recall clause
Jurisdiction and governing law clause
Business to business supply chain contracts
If you are supplying a component of a product to another company within the supply chain to complete the final design, you will have to construct a business to business contract.
Companies who are working together to produce a product should determine in their initial agreement who will be responsible for liability resulting from a product failure. This can vary depending on the nature of your businesses involvement.
Businesses have to ensure they follow the conditions of selling goods. The product must correspond to the description, be of satisfactory quality and meet with the quality of the sample. Clauses can be included into the contracts as long as they are considered reasonable under the Unfair Contact Terms Act 1977.
There is a higher level of protection for consumers compared to businesses. When selling a product to a consumer, businesses have to comply with the Consumer Rights Act 2015 which has replaced a great deal of previous consumer legislation.
The Consumer Rights Act outlines the requirements all products must be:
Of satisfactory quality
Fit for purpose
Contracts cannot exclude or limit liability for goods not meeting the above requirements. Liability for death, personal injury, fraud can never be excluded in any contract.
Wherever your business fits in the supply chain, it is vital that you seek specialist legal advice to ensure your contracts reflect your needs and protect your company.
Sonya Bassett, Partner and Head of Corporate and Commercial at Coodes Solicitors, shares the key questions business owners will need to answer when preparing for a share sale.
If you are selling a business, you will need to decide whether to do so by way of an asset sale or a share sale. An asset sale involves selling some or all of the company’s assets, such as the business (or elements of it), land, buildings and equipment. In a share sale, the buyer purchases the limited company, as a separate legal entity, while the assets generally remain within the company. In other words, a share sale changes the ownership of the company.
So, if you are preparing for a share sale, what are the key questions you will need to consider?
Who do you need on your deal team?
At the earliest stage, you will need to put together a team to work on the sale. As every business is different, the make-up of the team can vary considerably from one sale to another.
However, the typical team will include:
Members of the management team, usually including the CEO or MD and other senior executives.
A corporate lawyer to coordinate the legal aspects of the share sale. Your legal advisor will document the transaction and transfer legal ownership of the shares from seller to buyer. The lawyer will also have a number of other roles, including guiding you through due diligence and facilitating communications between the parties. The corporate lawyer will also bring in the specialist advice that you need, in terms of employment law, commercial property and so on.
Most sellers will engage a firm of accountants to assist with matters such as advising on the tax aspects of the sale and preparing financial statements. Some also appoint a financial advisor, particularly if the business is going through an auction sale.
There are two different ways you could approach a share sale. The approach you take is likely to depend on a number of factors, including the target timescale for the share sale, the level of interest from potential buyers and the structure of the business.
Sale direct to the buyer
This transaction involves negotiating directly with a single buyer, who you have already identified. It will require an early confidentiality agreement between buyer and seller and may also involve other preliminary agreements, such as heads of terms. The buyer will need to follow a due diligence process, submitting enquiries about the company for the seller to respond to. The next stage will be to draft, negotiate and agree the share purchase agreement before completing the transfer of shares to the buyer.
Some share sales involve holding an auction to invite bids from a range of prospective buyers. In an auction sale, the seller drives the transaction, including carrying out due diligence and distributing information to potential buyers. An auction sale can complete more quickly because the seller retains more control over the process.
There is typically a first round of bidding, with interested parties being invited to submit their indicative offers by a deadline. The seller will then select a shortlist of bidders, who will be provided with access to the data room, which is a physical or virtual space containing information about the company. The shortlisted bidders will also usually be given the opportunity to raise issues with the company.
Whichever format the sale takes, you will need to carry out due diligence before a share sale. This is an important way of carrying out checks on the potential buyer. Your lawyer should advise you on what due diligence you should carry out.
The buyer is also likely to carry out detailed due diligence prior to a share sale. This can be time-consuming for the seller, so the company needs to be prepared for this by having the right team in place to handle these enquiries.
Do you understand your warranties and indemnities?
When I advise a business through the process of a share purchase, dealing with the seller’s warranties and limitations on liability is often time-consuming and sometimes contentious. Warranties and indemnities relate to the condition of the business and arrangements to compensate a buyer if issues occur. If you are planning a share sale, it is vital that you seek legal advice to ensure that the right warranties and indemnities are in place. My previous blog explains more about the importance of understanding warranties and indemnities if you are preparing for a share sale.
A share sale can take months to complete and is often a complex, and sometimes difficult, process. Having the right team of people to support you through the sale is the best way of ensuring you get the best result.
Employment specialist at Coodes Solicitors, Philip Sayers, discusses the responsibilities of employers in ensuring the health and safety of pregnant employees.
A recent survey by the Equality and Human Rights Commission revealed that 41% of pregnant workers felt that their job risked the health of themselves and/or their baby. Unfortunately, there are instances in which women feel they have to decide between risking the health of their baby, or themselves, staying off sick or leaving the job altogether.
Different types of businesses and places of work will bring about different risks. For example, a construction site will pose greater risks to pregnant workers than an office. Certain risks can compromise the health of the mother and/or the baby, while some are even linked to miscarriage and premature birth.
In every business, any potential risks need to be addressed by the employer.
What action does the employer need to take to protect pregnant workers?
Once the employer has completed a workplace risk assessment, they can then make reasonable adjustments to reduce the risks to the new or expecting mother.
Adjustments can include altering the workspace to make the employee feel more comfortable, introducing more flexible hours and offering extra breaks. It may also involve finding suitable alternative work within the company if the risk of their current role is too high. In the event that this is not possible, the employer can suspend the worker with full pay.
When does a pregnant employee have to notify their employer?
Workers must notify the business of their pregnancy by the 15th week before their due date. This is also known as the notification week. However, many employees choose to inform their employer at an earlier stage. Expectant mothers must inform the employer:
When they intent to go on maternity leave
That they want to receive statutory maternity pay
The employer must then confirm the date of the maternity leave in writing within 28 days of being notified.
Every employer should be aware of their responsibilities to ensure they provide pregnant workers with the protection they are entitled to.
Coodes Solicitors Partner and Head of Commercial Property Jo Morgan explains what an option agreement is and what landowners should be aware of when offered one by a developer.
With the current push from the Government to build more new homes, landowners are frequently being approached by developers and third parties who are interested in acquiring all, or part, of their land. This can be a substantial acreage or just part of a garden or residential home. Either way, land is often one of your biggest assets and it is important that you get the best possible deal for any sale you may agree.
Approaches may be in the direct form of an offer for purchase of land by housebuilders, but often developers will propose an option to purchase.
What is an option agreement?
An option agreement can take different forms and, therefore, the complexities can vary. The most common is a call option, where a developer acquires a right to require the sale of a parcel of land for the period of the agreement. The key terms of this option, including the acquisition price, are negotiated at the outset, therefore, getting advice at an early stage is crucial. While the eventual purchase price is a heady draw, it is always important to bear in mind other terms of a future sale and to consider that most options may never be exercised.
The general purpose of the option is for the developer to secure an interest and control over land without actually buying it. This is a critical element as the developer can gain an interest in the land, which then gives him confidence to make other decisions. This may be obtaining planning permission for the site, with the assurance that they can exercise their option to purchase later. Generally, the developer will intend to obtain planning, which may be for a wider area than the land owned.
Usually, a specific clause will be included in the option, so the developer can apply for planning without objection from the landowner. This is an important point to discuss ahead of agreeing to the option, especially where the landowners retains an interest in adjoining land.
Options can affect the whole or just part of a parcel of land. The landowner would need to consider their position to make sure the option reflects their intentions and desires. If it concerns a substantial area of land, staging can be considered, and the impact on any land remaining, should be deliberated by the landowner. Forethought must be given to the future impact on any nearby or adjoining land retained by the landowner.
How can an option benefit a landowner?
Aside from the obvious possibility of future sale proceeds, as the landowner often has no guarantee that the option will be exercised, it is usual for there to be an option premium agreed between all parties. This is a sum of money, often non-returnable, that is paid to the landowner on the grant of the option.
If you are approached by a developer offering you an option for your land and you are interested in the proposal, it is important that you seek advice at the earliest opportunity. We recommend that you seek advice from a surveyor to get a valuation of the land alongside discussing key terms. As many developers produce a legal document immediately for review, it is also crucial that you get legal advice on the terms laid out in the option, to ensure there are no adverse provisions and that all terms required are included. Quite often, it is the missing clauses and provisions that can be the most problematic.
Land is likely to be one of the biggest assets that you will ever own, and it is important that you get the best deal for you, now and in the future.
News reports suggest that the average amount donated by the ‘Bank of Mum and Dad’ is £18,000. This is a massive boost to deposits for first time buyers, but it can raise other issues. Wills, Trusts and Probate lawyer Ed Coode and Residential Property lawyer Kate Manning discuss these.
Here at Coodes, we see parents helping their adult children with funds ranging from a few thousand pounds right up to the gift of a house. This needs careful thought and planning, so these are the things we think you should consider.
Have you made note of the gift in your Will?
If you have children, and want to divide your estate after your death fairly between them, then you may wish to update your Will to take account of a gifts or deposits given to each child during your lifetime(s).
The Inheritance Tax (IHT) and Capital Gains Tax rules around gifts are complicated and there are many pitfalls, particularly with regards to shares of property and IHT taper relief. If you think IHT may apply to your estate, or you are giving or creating a new interest that may trigger a Capital Gain, then you should take advice from one of our lawyers before making the gift.
In some circumstances a gift could be seen as trying to avoid care home fees, which may cause problems later on.
Do I need a Declaration of Trust?
If you decide to gift money to your child for a deposit, you could protect the money you have gifted with a Declaration of Trust. This can state who gifted the money, how it should be divided when the property comes to be sold and lay out responsibilities for outgoings and what happens to the property if a relationship breaks down. You should consider that if your child goes on to marry, this could affect the enforceability of the Declaration of Trust.
If you expect it to be paid back when your child is financially better off then you should discuss interest, repayment conditions and security with your child before we can advise on documentation and appropriate safeguards for you both. You will also need to consider what should happen to this loan, if you were to die before it was paid back.
Are you going to take a legal charge on the property?
One of the best ways to protect the money you are lending to your children is to make a formal loan and then secure it by registering a charge against the property being purchased. However, if there is a mortgage then the lender must consent to this. If the property is sold in the future, your loan could then be paid back. If you are thinking about taking a legal charge, you will need to instruct a lawyer to draw this up for you.
Is your child buying with a spouse or long-term partner?
This may affect whether you wish to make a gift or a loan to your child. You will need to consider the implications, and you may decide to take a charge on the property to protect your child’s contribution. In these circumstances, your child and partner should also make Wills.
Should I jointly purchase the property with my child?
You could jointly purchase a property with your child and take out a joint mortgage, although this would make you equally liable for the repayment of the loan. There are advantages and disadvantages to this. Higher rate stamp duty could become payable if the property is your second home and there could be Capital Gain implications upon sale. Our team can advise you of the potential implications if you are considering this approach.
Is this a gift from your own resources, or are you releasing equity from your home to fund it?
This will need careful consideration and we can advise you on the implications of the different options. We have a specialist team who can advise you on equity release mortgages.
Whatever your circumstances, you will need to think carefully about the best way of dealing with the gift or loan to your children. Being the Bank of Mum and Dad is often more complex than you first think, so take a step back and get legal advice before you offer to help.
Employment specialist at Coodes Solicitors, Philip Sayers, shares his top three questions most commonly asked by employers in the agricultural sector.
Agricultural employers have a difficult job of running a labour intensive and highly seasonal business, while striving to comply with employment law, which is becoming steadily more complex. Here are three questions I am frequently asked by employers in the farming sector.
1.What is a fair wage for farm work?
In England the sector no longer has a separate body assessing wage levels, but long-standing agricultural employees can be entitled to a higher than usual rate of pay. In any event the national minimum wage and national living wage are very relevant and steadily rising. Where the workers are family members living in the family home the minimum wage rules may not apply but for all other farm workers they will do.
The nature of agricultural work, particularly farm work, does not lend itself to keeping a careful record of hours worked. However, it is a criminal offence for an employer not to keep adequate records to prove they have paid the minimum wage and it is very difficult to defend any claims alleging an underpayment without those records.
2.Do I have to comply with Working Time Regulations?
The Working Time Regulations apply to agricultural workers, so employees cannot work more than an average of 48 hours a week without signing an opt out. There are also mandatory rest provisions, including building in eleven clear hours between one shift finishing and the next one starting. In recognition of the seasonal fluctuations caused by the nature of the work these rest provisions can often be temporarily relaxed, but the employer must then provide a period of compensatory rest wherever possible.
3.Are my workers entitled to accommodation?
In the agricultural sector it is often the case that the worker lives in accommodation provided by their employer, for example a gamekeeper’s cottage. In other employment sectors where accommodation is provided, such as a flat above a pub, the occupancy is generally under a bare licence only and if the employment ends so does any right to reside. However, in the agricultural sector it is possible for a worker to benefit from a protected tenancy which can make it very difficult for an employer to reclaim the property even where employment has been terminated. Therefore it is extremely important for an employer to take legal advice whenever they are considering providing accommodation to a member of their workforce.