National minimum wage and national living wage rates are set to increase on 1 April 2018. While all employers should ensure that their pay levels meet or exceed these rates, employers in the retail industry will be particularly affected.
The rate of pay a worker is entitled to largely depends on their age – people over 25 are entitled to the national living wage, which is a “boosted” amount of the minimum wage. Apprentices are in a separate category, and generally have lower entitlements.
The Low Pay Commission, who advise the government on their yearly review of the applicable rates, say that this will be the largest increase in a decade for 18–20 and 21–24-year olds, with a respective rise of 4.7% and 5.4%. The table below shows the new rates, applicable from 1 April:
Under 18 (but over school leaving age)
*Apprentices will either be under 19 or over 19 and in their first year of an apprenticeship.
Failure to pay the national minimum and living wages could result in an employer being fined and possibly even publicly named by the Department for Business, Energy and Industrial Strategy.
If you need help in understanding your obligations to pay the national minimum or living wages, please contact our employment team.
A recent ruling is likely to have significant consequences for guardian property companies (and other landlords) who use licence agreements to place occupiers into properties to protect against squatters and vandalism. The case of Camelot Property Management Limited and Camelot Guardian Management Limited v Roynon  highlights the importance of carrying through in practice what a document/ licence has set out to achieve.
The matter of whether a licence is really a licence or indeed a lease has long been debated and for some time now it has been widely accepted (following the decision in Street v Mountford ) that the principles of exclusive possession, rent and length of term govern how a ‘licence’ will be regarded by the courts.
The recent Camelot case did not set to change these principles but has offered valuable insight as to what is required in order to prevent ‘exclusive possession’ from arising and turning a ‘licence’ into a lease or formal tenancy.
The ‘licence’ agreement with Mr Roynon for the occupation of two rooms in a former old people’s care home contained the following restrictions:
No overnight guests
No unsupervised guests
No more than 2 guests at a time
All guests to be escorted from the property at the end of each visit
The court held that the provisions of the agreement did not accurately reflect what happened in reality. Whilst the licence stated that no exclusive possession would be given, Mr Roynon had in fact been given keys to two rooms to which no other guardians had access and which no one entered without his permission.
Regular inspections of the rooms by Camelot were not held to be sufficient to counter his exclusive possession and Mr Roynon had therefore acquired an assured shorthold tenancy rather than a ‘licence to occupy’.
The case highlights the need to put into practice what a document/ licence has set out to achieve and where no exclusive possession is intended, landlord’s must make sure that the living arrangements are not contrary to the formal agreements put in place.
Anyone using guardians or short term occupiers to prevent buildings remaining empty should carefully balance the risks of allowing people into occupation with the rise of professional squatters and other unwanted occupiers who could look to take advantage of such situations.
The long awaited restriction on agent’s fees is one step closer with the recent introduction of draft legislation to ban the requirement for tenants to pay fees or other charges on top of rent and payments for services from third parties. The proposals could also limit the amount of tenancy deposits held by a landlord in a relevant scheme.
The level of fees that tenants pay to letting agents has long been an area of concern, due to the lack of regulation in the market. Following a consultation process, the Government has sought to address the concerns with the introduction of the draft Tenant Fees Bill 2017 (TFB 2017). In addition, the Government is now in consultation about making it mandatory for letting and managing agents who handle client money to be members of financial protection schemes for clients.
The TFB 2017 seeks to prevent landlords and their agents (on the grant, extension and termination of tenancies) from charging fees or other payments on top of the rent, with the exception of a capped refundable security deposit (at no more than six weeks’ rent). It also requires that refundable holdings deposits are capped at no more than one week’s rent. The restrictions will only apply to those tenancies that are completed after the legislation has come into force and it do not seek to control those fees in long leases, social housing tenancies or holiday lets. In addition, the Government proposes to extend the legislation so that there are restrictions on the fees charged by landlords and any payments to third parties.
The legislation will be enforced by already stretched local authorities (Trading Standards). A rogue landlord or letting agent risks a penalty of £5,000, with further penalties of up to £30,000 or criminal liability where there are subsequent breaches within 5 years. Any prohibited payment, plus interest, will be required to be repaid to the tenant where there are deemed breaches.
The TFB 2017 also seeks to amend the Consumer Rights Act 2015 (CRA 2015) so that letting agents must clearly display on property portals any letting fees to the consumer and identify which redress scheme they are a member of, and whether they have client money protection. This is a welcome move to legislate the online space, to match the requirements of agents’ websites and offices.
A better and fairer market place will exist once all lettings agents are regulated, aligning their practices with the same quality standards as those of other professions, such as solicitors. This is a long overdue piece of legislation and will not come too soon for those who wish to see a more regulated lettings market.
Christmas already seems like a distant memory and the focus is now very much on what is in store for 2018.
Us employment lawyers had plenty of reasons to become animated during 2017, with the cancellation of Employment Tribunal fees, the constant debate about whether an individual is an employee, a worker or self-employed and latterly the influx of allegations of sexual harassment in the workplace which for some public figures was, a very touchy subject (pun intended). Surely 2018 cannot compete?
Well, there are a number of anticipated developments throughout 2018 to keep us all on our toes:
• Employment status – this topic will continue to run as a number of appeal cases relating to employment status are due to be heard in 2018. In particular, Uber’s well publicised appeal will be heard at the Court of Appeal and the Supreme Court will consider a leading case (referred to as the Pimlico Plumbers case) in February 2018.
• Gender pay gap – for qualifying private companies, the deadline for publishing their gender pay report is 4 April 2018. Although some high profile organisations have published already, we have certainly not heard the last of this, nor is the fallout from the findings over. Carrie Gracie’s resignation from her post as China editor at the BBC is just the beginning for 2018.
• Termination payments – on 6 April 2018, new legislation will bring about changes to the way in which these payments are taxed that will affect in particular termination payments incorporated within a Settlement Agreement. One of the key changes is that there will no longer be a debate about the extent to which a payment in lieu of notice can legitimately avoid any tax or national insurance. From 6 April, any payment in lieu of notice will always be subject to tax and national insurance deductions.
• Statutory payments – we will have the usual statutory payment increases in April 2018 which will include an increase from £140.98 to £145.18 in respect of statutory adoption, maternity, paternity and shared parental leave pay and an increase from £89.35 to £92.15 for statutory sick pay.
• GDPR – the General Data Protection Regulations will come into effect on 25 May 2018.|Whilst the implications are wide reaching for most businesses, we are particularly concerned about the impact on employee data, and the need for consent to process that information. Data protection is one of the most talked about issues as we go into the New Year.
• Mental health in the workplace – there have been increasing amounts of press surrounding the promotion of positive mental health in the workplace and the onus is on employers to take steps to protect its workers. ACAS suggest that mental illness costs employers in the UK around £30 billion per year in lost productivity, absence and recruitment costs. A good starting point is to consider implementing a mental health policy.
The rise of the ‘pop up’ shop in shopping centres and high streets throughout the UK has kept the retail team at Sherrards working flat out in the run up to Christmas. Led by Terry Fendt and Stephanie Kierans, they have provided the legal advice on 28 pop up stores for long standing client Menkind Limited in the last few months. Promoted by Mary Portas as a way to regenerate high streets after the 2008 recession, ‘pop ups’ are now a sophisticated and carefully calculated business tool allowing many retailers to test locations, launch new products and promote brand identity, particularly around Christmas time
Sherrards’ retail team manage property portfolios for numerous household name retailers and recognise the evolving market and the need to provide expert commercial advice quickly and effectively. Understanding the needs of the client, the team can negotiate a less onerous short-term lease, for example with limited repairing obligations and turnover rent within a very short timescale. Many retail companies experience an uplift in sales in the run up to and during the Christmas period, so the pop up store provides them with a temporary unit which can then be removed after the festive period.
A temporary store allows many retailers to try out new locations or even a new position in a shopping centre or high street.
Pop up store require little fit out as they are temporary and cost much less than a fit out for a permanent store.
Pop ups allow landlords to keep their premises occupied throughout the year.
Over the coming months all eyes will be on the development of the area of ‘disclosure’ and the way in which that task is undertaken if the Disclosure Working Committee’s proposal for a mandatory disclosure pilot scheme goes ahead.
The rationale behind the proposal is understandable. For anyone involved in commercial proceedings, disclosure is arguably one of the key phases of litigation, but it is also one of the most expensive. The proposal, released in November 2017 by the Committee, set up to look at ways of creating a more streamlined and cost-effective approach to the disclosure process, will be piloted in the Business and Property Courts. The intention behind the pilot will be to see whether the proposals are workable in practice, with the end goal of bringing about a cultural change to the whole process.
The principle of disclosure is for the parties to make available all documents which support or undermine the respective parties’ case. A ‘trusted’ and well used method of undertaking the exercise is to carry out keyword searches for disclosable documents. However, this can be both labour intensive and expensive.
For this reason, litigators are looking at ways of managing the task, in terms of the volume of the documents and the consequential costs. One way is the use of predictive coding software. The starting point is to review a ‘seed set’ of documents and for coding/labelling to be applied to that set. The software is then programmed to review the entirety of the documents, using algorithms to generate results that can identify and discard irrelevant documents.
There are certainly benefits to using this type of technology. However, it is not without its sceptics. Some are concerned that the use of predictive coding might cause privilege to be waived inadvertently, because reliance is being placed on technology as opposed to a human pair of eyes to analyse each document.
The concept of privilege has been enshrined in law to enable a person to be able to obtain legal advice, in the comfort of knowing that such is to remain confidential. Legal professional privilege steps in to place a cloak around the documents, that would otherwise be disclosable, and entitles them to be withheld from disclosure.
The concerns about privilege and the use of technology in disclosure will, no doubt, be tested if the recommended pilot gets underway. For now, the subject of disclosure and privilege remains at the forefront of all those involved in commercial proceedings.
Littleton Chambers, a leading commercial and employment set of barristers, recently hosted a seminar on the topics, and invited Gemma Newing to speak about the potential issues. Please click here for a short video produced by Littleton Chambers on topics surrounding disclosure and privilege.
Picture the scene: John Smith decides to move a fence a few inches into his neighbour’s land. He thinks nothing of it. In fact, he believes the additional land is his anyway. He re-locates the fence whilst his neighbour is away on holiday. John’s actions spark a row and a claim for adverse possession is lodged by his neighbour resulting in sleepless nights for John, stress, family strife and finally thousands of pounds to settle the claim out of court. Not a situation you want to find yourself in.
The Party Wall Act 1996 is the ‘go-to’ legislation that deals with such boundary issues. In short, it offers a framework for resolving disputes and highlights the step by step procedure to follow to ensure that disputes are avoided in the first place.
Bear in mind that if you own a flat for example with a garden and you wish to undertake extension works, you would need to consider the above Party Wall Act. Not only will you need to obtain the freeholder/landlord’s consent to the works but you must engage a party wall surveyor, notify the neighbouring flat-owner/s and then request that they each consult a party wall surveyor before you proceed with the works.
There are some common sense ways to deal with such a situation before it escalates and to maintain good will between neighbours at all times.
Before you tear down a joint wall, mend or move a fence or cut down a tree on a boundary for whatever reason, consider the following:
If there is a joint boundary you want to do work on, always sound out your neighbour before you do any work – it is advisable to discuss this with him/her and then put the request in writing.
Always engage a party wall surveyor before you do any work.
Remember that Land Registry plans show a general boundary and until that boundary has been “determined” by survey (which is rare), the boundary is not definitive.
Note that making a party wall taller, shorter or deeper, removing a chimney breast from a party wall and digging below the foundation level of a neighbour’s property, building a new wall on or at the boundary of 2 properties, cutting into a party wall, knocking down and rebuilding a party wall all constitute building works for the purposes of the Party Wall Act 1996.
It is vital to consider the lawyer/surveyor interface. Whilst lawyers have to describe land in a way that precisely defines those boundaries, they are not trained to do what is essentially the work of a surveyor. When purchasing a piece of land without adequate plans, ensure you arrange for accurate plans to be prepared by a surveyor to a large enough scale – it could save you time and expense.
Always check with the local planning department to make sure that the tree you wish to cut down or trim is not subject to a tree preservation order or situated in a conservation area.
In law you are entitled to cut off any branches of a tree overhanging your property provided you return them to their owners.
You have the right to prune back any overhanging vegetation on your land on the basis that the pruning does not cause long term damage to the tree.
Entering someone’s property, without permission, to cut a tree would of course, be illegal.
For more information on any of the issues above please contact our residential team.
Click here for a fuller understanding of the Party Wall Act 1996.
Beyond the stark warnings of the recent BBC article in respect of the challenges faced by unmarried couples in life, they are also at a serious tax disadvantage post death both in terms of how the estate is shared if their partner dies without leaving a Will (they have no automatic claim on assets solely owned by their partner and have to make a formal claim, potentially to the Court) but also in terms of inheritance tax
Inheritance tax can be a major problem for cohabiting couples. Cohabitees with property and other assets with a combined value of more than £650,000 face an inheritance tax (IHT) charge if one party dies. This is because unmarried partners can only pass assets up to the value of the nil-rate band of £325,000 free from the imposition of inheritance tax. Everything that passes from one partner to the other above that sum is taxed at 40% of that value.
Compare this with anything left to a spouse or civil partner which is 100% exempt from inheritance tax. In addition, the surviving spouse/civil partner can “inherit” the other party’s nil-rate band, meaning the full £650,000 can pass to other beneficiaries such as children on the death of the second spouse/ civil partner. This transfer of the nil rate band is not available to unmarried couples.
In addition, the new Residence Nil Rate Band, potentially giving married couples and civil partners an additional exemption of up to £200,000 on the second death, is not available to cohabitees passing assets to their children.
So be warned, and act early! Things can be done to reduce the negative impact. It is important for everyone to make a will and make arrangements to be as tax efficient as possible but it is imperative for non-married partners to get their affairs in order – or maybe this Blog will lead to a number of hasty proposals? A word to the wise though – do not mention inheritance tax planning advantages during the course of the proposal!
Sherrards’ Private Client Team are here to help with Wills, Lasting Powers of Attorney, Inheritance Tax planning, Pre-Nuptial Agreements, Co-Habitation Agreements and Mediation.
With a booming economy, China has become an economic powerhouse for UK businesses looking to expand, as a result of the country’s high growth and investment potential.
While the Chinese market is attractive to investors across a range of sectors, the country has a reputation for being a difficult market to penetrate from an international perspective. As a result, growing UK companies with global aspirations require a carefully considered strategy to ensure a successful expansion into China, regardless of the size and sector in which they operate. With the right planning in place, businesses can ensure that they are prepared from the outset and are able to avoid the common mistakes made when navigating such a complex market.
At a recent event held by Sherrards’ China team, alongside IP law firm Haseltine Lake, we helped prepare businesses by shedding light on some of the key legal issues faced by companies entering and operating in China, as well as how these challenges can be overcome.
Chinese legal system In the UK, the legal system is highly-established, comprehensive and reputable, so much so that it is often the preferred governing law for international business transactions. In China, corporate and commercial laws are developing rapidly, with a number of laws in place that are yet to be tested. This can mean that processes around finalising contracts are often less formal than in the UK.
It is recommended that all matters related to UK businesses operating in China are governed by UK law so that if disputes arise they are subject to one of the three UK legal systems for England and Wales, Scotland and Northern Ireland. UK law enables parties to resolve matters through arbitration rather than court proceedings, if applicable. However, it is important to have a trusted Chinese law firm involved from the outset, working in partnership with UK businesses and law firms to support matters on the ground in China.
Chinese businesses tend to operate through trusted local networks due to language and cultural familiarities, which can make accessibility a challenge for external overseas companies. This reinforces the need to build relationships with legal contacts and business partners that are familiar with the Chinese market, fluent in the language and have access to crucial networks.
Intellectual property Having only introduced patent laws over the past 30 years, there are question marks over China’s reputation for IP protection and businesses are advised to be vigilant as a result. This is in fact shifting, with China implementing stricter enforcement of patent laws, but it still remains an issue. It is, therefore, advised that businesses adopt measures to protect their IP through the use of trusted legal partners who understand the IP legal landscape in China.
Litigation Litigation procedures in China are significantly different to those of the UK system. The Chinese process for resolving disputes is often considered to be less thorough and stringent than the British approach, involving practices that are considered the norm in China but not widely accepted in the UK.
Laurel Zhang of Sherrards’ China and Southeast Asia team, explains: “The key to operating in China is to gain the trust of your partners and investors. Most importantly, when trading with China, connections are crucial. Ensuring you have a partner on hand, who understands the market and the risks involved from the outset, is vital.”
If you are looking to expand your business internationally and would like to speak to a member of our team, please visit our International page, or our China and Asia page for queries related specifically to our Chinese legal services. You can also contact Laurel Zhang of our China and Southeast Asia team for more information on +44 (0)20 7478 9916.
If you’re a landlord, you may get your “usual” tenancy agreement from your letting agent or one of the many landlord association websites. But it’s important to consider whether this “one size fits all” approach is really appropriate for your needs… and to be aware of the pitfalls.
Before entering into a new letting arrangement, a landlord should make sure they are fully up to speed on the ever changing procedural and regulation requirements of residential lettings. They should also think carefully about any issues specific to the property in question and its proposed letting.
Five must ‘dos and don’t’s’
Check the title to the property
is prior consent of the letting or notification of the letting required by a third party?;
is the form of subletting restricted, for example, to assured shorthold tenancy agreements? Are the parties to whom the property can be let restricted, for example, only one family may live in the property?;
is the property subject to restrictive covenants or regulations that may require bespoke clauses in the tenancy agreement: e.g. no business to be conducted at the property/no commercial vehicles to be parked on the premises or in any allocated parking space?
Use the correct form of tenancy agreementfor the specific letting
A house/flat share agreement (non-resident owner) is more appropriate for room letting whilst a non-assured shorthold tenancy agreement is better for letting to a company.
Make sure the tenancy agreement.
is clear and legible
states parties’ names and addresses, correctly spelt
clearly gives the fixed term and rent
provides that both landlord and tenant should sign and date the agreement
provides an address for the landlord in England and Wales – an agent’s address may be given if the landlord is based overseas.
Insurance Provisions in the tenancy agreement
Normally a landlord will arrange building insurance. As such the tenancy agreement should
prohibit the tenant from acts that prejudice the validity of the insurance
consider the tenant as being responsible for any increase in insurance premiums arising from the tenant’s actions
if the property is let furnished, provide for the tenant to be responsible for ALL contents at the property which would include an obligation to cover the landlord’s contents
consider including the ability to reclaim insurance excess from the tenant if the cause of the loss was the tenant’s behaviour
highlight to the tenant the insurance exclusions – e.g. claims of damage if the property is unoccupied or claims where security locks are not used
Consider including a contractual obligation on the tenant to agree to certain organisations disclosing information to the landlord in specified circumstances.
This is a useful clause to allow the landlord to gain information from the local authority, utilities companies or benefits agencies if necessary.
With all the above considerations in mind, a ‘one size fits all’ tenancy agreement is highly unlikely to fit every scenario. The wise landlord would be well advised to employ a residential property lawyer to draft a tenancy agreement tailored to the specifics of the letting arrangement – otherwise potential risks/exposure would include breaching the terms of the Landlord’s head lease plus difficulties regaining possession or reclaiming unpaid rent
If you have any queries about this article or residential lettings in general, please contact me at firstname.lastname@example.org or on +44 (0)2074789025