We are a full service law firm and leading sector specialists. Our combination of expertise, genuine teamwork and client commitment sets us apart, and that's why we're confident that we can deliver the best and most effective legal solutions to help you succeed.
The Court of Appeal's January 2018 decision in Thilakawardhana provides useful insight into the issues arising from the termination of a student's medical studies on fitness to practise grounds.
The appellant had completed three years of his medical course and commenced a gap BSc programme when disciplinary proceedings were instigated in connection with a meme he posted on Facebook which was deemed to be offensive and threatening towards another student. Having been sanctioned with a reprimand, the student was then subjected to fitness to practise proceedings, which concluded he was not so fit, a decision upheld by an appeal panel of the university and resulting in the end of his medical career. The appellant referred his complaint to the OIA, which concluded it to be not justified. The appellant then applied for, and was granted, Judicial Review of the OIA's decision, and appealed the unsuccessful claim to the Court of Appeal.
In reaching the conclusion that the appeal should be dismissed, Lord Justice Gross made a number of significant points:
While the same misconduct may lead to the disciplinary and fitness to practise processes, their purposes are distinct - The disciplinary process defines, deters and punishes behaviour which amounts to improper interference with the proper functioning or activities of the institution or those who work or study in the institution or action which otherwise damages the institution. By contrast, fitness to practise regulations determine whether a student is fit to practise in a particular profession, where evidence emerges that calls that into question.
The proportionality of sanctions - It is expected that a panel will consider whether any sanctions or remedial actions could be put in place to address shortcomings identified before completion of the student's course. However, this does not mean that a panel cannot conclude that there is a fundamental unsuitability for the profession that cannot be corrected. The test when considering whether the decision of a panel was proportionate (and therefore rational and reasonable) is "whether the decision is one to which no reasonable decision-maker possessed of expertise reasonably to be expected of the defendant could have come". This is deemed to be a high hurdle in this context as it involves professional judgment as to fitness to practise medicine.
The adequacy of appeal panel reasoning - The court accepted the argument that the appeal panel was entitled to each its decision under the advisory GMC/MSC guidance and that it took the range of potential sanctions and mitigating factors into account before deciding to expel. Whilst the panel did not give reasons for the possible outcomes it rejected (ie sanctions lesser than expulsion) it did give sufficiently clear reasons why it believed expulsion was appropriate. Even where grave consequences for the student are at stake, a lay panel is not required to provide an "elaborate formalistic product of refined legal draftsmanship". The reasons should be intelligible and adequate, such that the parties can understand why the matter was decided as it was, what conclusions were reached on the principal issues and why they have won or lost.
In dealing with issues of professional discipline or fitness to practise, the reputation of the profession is more important than the fortunes of the individual practitioner or student - As a result, the court should be slow to interfere with the decision of an appeal panel which is attuned to the context in which the student's conduct is to be evaluated, as well as the pastoral issues that arise, and includes amongst its members senior practitioners in the particular profession concerned.
Students on courses leading to registration in professions such a medicine, optometry and pharmacy should expect to be held to a high standard before, as well as after, they qualify. Equally, they can expect fitness to practise proceedings to be rigorous and fair and decisions that may end their choice of career to be proportionate and adequately reasoned, if not legally elaborate or refined.
Bank borrowing remains a popular and flexible option for universities looking to fund capital projects to enhance the student experience.
Most lending to universities will be of a size where banks will use Loan Market Association (LMA) standard terms and this article assumes the use of such terms, as well as lending by a single lender without syndication options.
Ducks in a Row: Aligning the Timing of Finalising Bank Terms into Project Plans
Once it becomes clear that external funding is required to deliver a capital project, time will spent selecting a preferred bank and negotiating the main commercial terms of the facility, such as pricing, financial covenants, terms, security and an outline of conditions precedent. These will usually be set out in some form of heads of terms.
HEFCE consent is likely to be required in respect of financial commitment thresholds. This should be sought in principle at the outset and then in more detail once agreed heads are available. Typical conditions to consent will include:
confirmation that final financial terms are no more onerous or restrictive than as set out in the heads of terms
evidence that the university has complied with its governance procedures to approve the loan.
You will also need to consider whether it is necessary to get consent from any prior lenders (which is also likely to be a HEFCE condition), as existing loans are likely to contain a 'negative pledge' that prohibits additional borrowing or security.
The timing of governor or council meetings for approving facility terms in accordance with your constitutional requirements and governance procedures is likely to be key. Many of our university clients tend to hold three or four scheduled meetings during the year, often with a gap during the summer months.
It is clearly in the university's interest to ensure the borrowing is intra vires and it is also crucial to the lender (and to HEFCE). You should check as early as possible with your preferred lender whether it has any specific wording required for meeting minutes. Lenders, or their solicitors, will usually have a prescribed form of words that deal with approval, the delegation of authority to a committee or other designated group that is empowered to agree amendments and execute the final form facility and related security, drawdown requests and to issue borrower certificates on behalf of the university.
The prescribed wording will, of course, need to be checked by your own lawyers (and any law firm required to provide a legal opinion on vires to the lender), but any changes will need to be agreed before the wording is sent out in your governor meeting packs. This requires careful scheduling.
Looking for Elephants: Reviewing Loan Facility Terms
Most loans of any size (£5 million +) will now be offered by banks in facility agreements based on LMA standard terms that are then amended by specific terms dictated by a bank's internal policies and its own higher education specific requirements.
Understandably, banks do not want to amend standard wording, but in our experience they are generally receptive to suggested changes where these are proposed to ensure restrictions do not catch some ordinary course operational activities. The process of obtaining consents after signing can be time consuming and incur costs of approval, so appropriate 'carve outs' negotiated into the agreement can avoid this and mitigate against the risk of you subsequently breaching the contract.
When reviewing the terms of the loan agreement you should consider whether:
it reflects what you have agreed in indicative terms.
the university can achieve what is being asked for it for drawdown and on an ongoing basis (eg in terms of reporting and communication).
there are any restrictions imposed which affect ordinary operating activity. Could you seek dispensation for some types of activity, or agree this up to a financial limit?
In our experience, typical issues encountered by universities include whether:
the university can give all the representations it is being asked to give, and will be deemed to give, throughout the life of the loan. Issues such as litigation, changes to subsidiaries and pensions may need to be thought through.
the information and financial information undertakings as drafted require the university to present information in a different way to its usual practice.
the wording of the financial covenants reflect the way the university presents its accounts.
the extensive General Undertakings are not unduly restrictive of ordinary operating activity. A common issue we help to resolve is that of restrictions on acquisitions, joint ventures and subsidiaries, where often carve outs are created in respect of existing situations and to allow future opportunities to be taken forward, subject to annual financial limits.
the negative pledge carves out existing security as permitted security. Sometimes it is necessary to examine situations where grants have been received by universities to purchase assets where there are rights of recourse, as these can fall within definitions of 'security'.
there is any restriction on giving guarantees. As well as in relation to subsidiaries, many universities will guarantee levels of room occupancy and student rent in third party operated student accommodation.
SONIA (the Daughter of LIBOR…Possibly)
Last summer by Andrew Bailey, Chief Executive of the FCA, announced plans to transition away from LIBOR to alternative reference rates by the end of 2021.
Many universities will have LIBOR linked loan agreements, some of which will still be utilised after 2021.
For the sake of an orderly market the transition will no doubt be carefully handled over time and facility agreement terms amended accordingly, by LMA and others.
For Sterling LIBOR, the FCA is considering SONIA (Sterling Overnight Index Average - an existing rate administered by the Bank of England) as an alternative to LIBOR. University Finance Directors will no doubt keep this on their radar as the solution emerges and amendments to existing terms will be necessary at some point.
In October 2017, the Universities and Science Minister announced the launch of a new Knowledge Exchange Framework (KEF), to operate alongside the existing Research Excellence Framework (REF) and Teaching Excellence Framework (TEF).
University research outcomes have been the subject of review for many years, eg through the HE-BCI return and HESA reports. There have also been a number of wide-ranging reviews including the Witty Review (2013), the Dowling Review (2015) and more recently the McMillan Report (2016).
The McMillan Report followed a government request to HEFCE to develop a university knowledge transfer performance framework. Led by Professor Trevor McMillan (Vice-Chancellor of Keele University) the report focused on the exploitation of intellectual property arising from university research, examining best practice, key performance improvement issues and international comparisons.
The report’s findings were that vast differences between universities (what they do and how) means that there is no safe 'one-size-fits-all' approach to measuring knowledge transfer performance. UK universities are operating at a 'world-class standard' for technology transfer practice. However, there was recognition of the value of building eco-systems around universities to aid knowledge transfer, including securing "patient" capital in support of nascent technology businesses.
You Get What You Measure
The KEF is being signposted as a means for universities to reflect on their performance in knowledge exchange and raise their game. It may also lead to a shift towards commercialisation activities, especially in engineering, medicine, technology and science, where outputs are arguably easier to measure. Access to Higher Education Innovation Funding will be linked to positive feedback on KEF returns which will be particularly important for universities with a focus on the arts and humanities.
There are concerns that the KEF should avoid measuring outputs too prescriptively, potentially creating perverse incentives. The REF has already been attacked for some of its performance measures, with critics arguing that it negatively distorts research behaviour.
What Could You Consider Now?
While we await further announcements on the KEF, universities could consider the following measures:
A Fit-for-Purpose Technology Transfer Policy
We often find that the absence, or under-development, of university technology transfer policies generates uncertainty and causes delays. Sometimes this can lead to academic parties developing unrealistic expectations, or impairing the ability of universities to fulfil their governance and legal obligations – in particular to ensure that they:
receive fair value as charitable bodies, in return for the transfer of intellectual property rights and assets to private sector partners
meet complex state aid requirements
Having comprehensive guidelines for the commercialisation process allows a university to communicate clearly and consistently with its academics, other spin-out participants and prospective funders. This clarity enables everyone involved to identify the feasibility of proposals at an early stage, how best to structure them and what to expect personally from the arrangements.
These guidelines can also help academics and technology transfer teams develop their understanding of the legal challenges of research commercialisation. For example, participants might identify their shareholdings in a spin-out company as the key driver of their level of control and share of commercialisation proceeds. In fact, minority shareholders can still exert significant control through a shareholder agreement. Revenues can be generated through an intellectual property transfer agreement by way of licence fees and royalties, as an alternative to depending on share dividends from retained profits.
High on the list of complaints from industry and academic quarters is the difficulty of, and time taken in, sorting out legal structures and contractual terms with partners. Universities engaging actively in research collaborations, or facing the prospect of launching a number of spin-outs, can adopt template contracts which reflect their published technology transfer policies. This gives a better prospect of consistency between transactions and should reduce cost and time overall in negotiating deals.
... Deployed in a Pragmatic Way
Whilst advising higher education institutions on these matters we have encountered problems with technology transfer professionals taking a rigid and prescriptive approach to contractual negotiations, unwilling to adapt standard contracts ill-fitted for the requirements of an 'out of the ordinary' commercialisation project. This can add unnecessary delays and costs to the process and damage goodwill between the partners. University technology transfer teams need to develop the confidence to consider alternatives and bespoke solutions in order to get deals done efficiently, whilst still protecting the interests of their university.
Another way of reducing the time and cost of negotiating technology transfer arrangements is to form long-term partnerships with key industrial and academic partners. Operating within an agreed framework on a series of related projects in a specialist field of research or technology will reduce the 'drag' associated with contract negotiation, ensure consistency of approach, greater certainty, and help to build trust between partners.
Training for Staff
Academic and other staff can be supported in developing their understanding of the commercialisation process, and their role in it, through their university providing training materials and courses. They can also be supported in preserving the value of university intellectual property assets through balanced publication policies.
It has been a long established principle that outsourced workers have no collective bargaining rights with the user of their services. However, this was recently challenged...
However, this was recently challenged by the Independent Workers Union of Great Britain (IWGB) which launched a legal claim on behalf of workers based at the University of London (University) amidst much publicity.
The IWGB submitted an application for recognition by the University for collective bargaining purposes. The application related to a bargaining unit of 75 workers based at the University, including security staff, post room workers and porters. Although the staff all work at the University, they are employed by a facilities management company, Cordant Security (Cordant).
IWGB argued that whilst Cordant is their primary employer, the workers should have the right to discuss their pay and conditions of employment with the University (their 'de facto employer') direct.
The claim was considered by the Central Arbitration Committee (CAC) which decided that outsourced workers are not entitled to collectively bargain with their 'de facto' employers.
The Trade Union and Labour Relations (Consolidation Act) 1992 (TULRCA) states that requests for recognition must be made to the employer. It was accepted by both parties in this case that the workers' actual employer was Cordant. IWGB argued that the University was the 'de facto' employer of the workers because it substantially determined the terms and conditions under which they worked.
In considering this argument the CAC looked to the definition of 'worker' in TULRCA which requires a contract to exist between an individual and another party under which the individual undertakes to do or perform work personally. The lack of any such contract between the workers and the University in this case was fatal. Even if the University played a significant role in determining the terms under which the workers carried out their roles, in the absence of any direct contract, the workers did not have the right to collective bargaining with the University.
The CAC also considered that in a collective bargaining context, the identification of two or more employers would run contrary to the requirements for fair and efficient practices and arrangements under TULRCA. Furthermore, if the application was allowed then the way in which collective bargaining is carried out would be notably transformed, with two unions having the ability to bargain with two employers (one actual; one de facto) over terms that were in place for the same group of workers. The CAC expressed concern that allowing such a situation would result in "chaotic workplace relationships".
The decision will come as a relief to Higher Education Institutions utilising the services of outsourced workers. This case has, however, been followed with some interest by the press, with emphasis being given to the need to avoid end-users being able to evade responsibility for workers entirely.
The claim follows plans by the Treasury to extend a crackdown on sham self-employment arrangements, potentially by ensuring that the organisation hiring the worker is responsible for any shortfall in tax, where that worker should have been taxed as an employee. This perhaps demonstrates a push towards end-users taking more responsibility for those working for them.
This case has far reaching implications for practices across many sectors within the economy. In this case The Harpur Trust seeks a common-sense interpretation of the Working Time Regulations (WTR) and recognition that working part of the year...
... should allow for a pro rata holiday entitlement and should be paid as no more than 12.07% of annual earnings, (the amount a full time worker would receive).
Mrs Brazel is employed by the Harpur Trust to work at one of its schools as a visiting music teacher.
She is employed on a zero hours contract and is entitled to the equivalent of 5.6 weeks' annual leave per academic year. Part time employees receive pro rata holiday entitlement and pay per year to receive the same percentage as their full-time equivalents.
Full time employees receive 5.6 weeks holiday leave and pay calculated as 12.07% of annual pay. (The calculation is 5.6 weeks holiday/46.4 working weeks in a full time 52 weeks per year contract = 12.07%). This calculation is used by ACAS and others as it ensures fairness between full timers and part-timers.
Mrs Brazel sought to rely on section 224 of the Employment Rights Act (ERA) which sets out the method to calculate the weekly pay of an employee with no normal working hours. Her case was that she was entitled to 5.6 weeks' holiday pay based on her average weekly pay over the 12 weeks actually worked by her, immediately prior to the relevant holiday being taken. This would have provided more pay than the 12.07% calculation.
The Harpur Trust argued that the entitlement to 5.6 weeks holiday per year should be pro-rated where the employee works fewer weeks than 46.4 weeks a year. If someone worked 26 weeks per year for example, they should receive 2.8 weeks holiday. 12.07% as a method of calculating holiday pay is a recognised way to ensure pro rating works effectively and full and part-time workers are treated equally.
The Employment Tribunal's Decision
The Employment Tribunal (ET) agreed with the employer, accepting that the amount of holiday entitlement should be pro-rated in light of both her part-time and term-time only working pattern.
The ET rejected Mrs Brazel's argument that she was entitled to holiday pay in accordance with section 224 ERA. The ET found that this 12 week calculation would have entitled her, who had only ever worked between 32 to 35 weeks a year, to the same 5.6 weeks holiday pay as someone who worked full-time. This would provide for an actual 17.5% of holiday pay being more generous than for someone who work 46.4 weeks per year.
Surprisingly, the Employment Appeal Tribunal (EAT) allowed the appeal, finding that:
the purpose of the relevant EU and domestic provisions is to ensure that part-time workers are not treated less favourably than those who work full-time
there is no equivalent provision so that full-time workers may be treated less favourably than those who work part-time
Section 224 ERA can be used to calculate the weekly pay of someone who works irregular hours
there is no entitlement for a school to carry out an exercise in pro-rating holiday entitlement and pay for those who work part of the year (only for those who work part of the week)
The judge accepted that those working part of a week, will receive a pro rata holiday pay entitlement. The judge did not accept that those working part of the year, may have the same pro rating calculation applied to their holiday pay entitlement.
Whilst the 12.07% calculation of holiday pay is widely used, this judgment means that those who work part of the year will receive a higher percentage of holiday pay. The 12.07% calculation may not be used as a cap.
At the extreme, if someone worked 12 weeks, they would be entitled to a full 5.6 weeks of holiday pay, calculated as the average weekly pay over the 12 weeks actually worked achieving a significantly higher percentage of holiday leave and pay than a full time equivalent. (This will not apply to full and part time teachers on a salary scale and being paid a percentage of the full time equivalent salary though).
The wording of the contract of employment cannot avoid this liability. 5.6 weeks' holiday entitlement and pay is a statutory entitlement and cannot be avoided by contract drafting.
The Harpur Trust have sought leave to appeal the judgment.
Whilst an appeal is being processed, it is premature for employers to change current practices. Where workers raise any queries as a result of this case, they should be informed that the position is under review.
The judgment must however be considered in light of the recent European Court of Justice decision in King v Sash Window Workshop. This could mean that any underpayment of holiday pay could be backdated for more than two years, potentially to the start date of employment or 1998, the introduction of the WTR, whichever is the earlier.
Employers may wish to audit their current leave and pay entitlements for casual and zero hours staff to consider the implications of the judgment.
The EAT judgment as it currently stands does mean that contract wording cannot avoid its implications. It is through appeal that the position will be redressed. We will update you with further developments.
Is evidence showing females clustered at the lower end of the pay scale and males clustered at the higher end of the pay scale sufficient to show that females are suffering from a 'particular disadvantage' under the Equality Act 2010 (EqA 2010)?
This is what the Employment Appeal Tribunal considered in the case of McNeil v Revenue and Customs Commissioners.
What the Law Says
Under the EqA 2010, an employee is entitled to receive equal pay to that of a comparator of the opposite sex in the same employment if they can be said to be carrying out equal work (defined as like work, work rated as equivalent or work of equal value).
An employer can pay a man more than a woman for doing equal work, where it can prove that the variation in pay is due to a material factor which is not directly or indirectly discriminatory (s69 EqA 2010).
The factor will be indirectly discriminatory if:
it results in the claimant, and other women doing work equal to hers, being put at a particular disadvantage
when compared with men doing work equal to theirs, it cannot be objectively justified as being a proportionate means of achieving a legitimate aim
Armstrong v Newcastle Upon Tyne
This case was also considered by the EAT. The case stated that if a statistical imbalance between genders can be shown by the employee, it would be for the employer to rebut the presumption that this imbalance is based on gender.
If an employer succeeded in rebutting this presumption then the equal pay claim would fail without having to consider objective justification arguments. The judge in McNeil followed some recent Supreme Court decisions and rejected this approach, meaning the defence accorded to employers by Armstrong is no longer considered good law.
McNeil v Revenue and Customs Commissioners
The female employees of HMRC appealed against an earlier decision of the Employment Tribunal that a distribution analysis showing female members of staff clustered at the lower end of the pay scale and male members of staff clustered at the higher end of the pay scale was not sufficient to establish indirect discrimination against the female employees.
HMRC had reviewed and amended its pay structure so that employees in the same 'band' were paid different wages based on their number of years of service. This resulted in the clustering of female employees on the distribution analysis, which has been termed the 'sex taint.'
The female employees claimed that particular disadvantage could be established by reference to the distribution analysis alone. When this was rejected by the tribunal, the female employees appealed the employment judge's decision.
The appeal was rejected.
The EAT held that the material factor in this instance which determined the disparate pay was number of years' service rather than gender.
Further, the EAT held that a distribution analysis on its own cannot prove indirect discrimination. It may, however, indicate an issue which requires investigation. The EAT noted that the distribution analysis did not reflect that the average basic pay of men and women at HMRC showed no significant long-term difference in pay between genders. It therefore could not be relied on to establish particular disadvantage.
This decision is interesting in the context of the obligations on employer with more than 250 employees to report their gender pay gap. There will be a focus on gender pay in the workplace and the distribution of male and females across an employer's pay range.
If you are an employer undertaking a distribution analysis and notice a discrepancy in pay between the genders, this is an indication that you should investigate your pay structures to ensure they are not indirectly discriminatory.
If you are an employee concerned about pay distribution in your workplace, you will need further evidence this above and beyond a distribution analysis.
For either position, the best way to establish whether indirect discrimination exists is to compare basic pay rates between the genders.
In a recent case, the Court of Appeal upheld a decision of the Employment Appeal Tribunal (EAT) that an expectation for a disabled employee to work long hours amounted to...
... a provision criterion or practice (PCP) for the purposes of a disability discrimination claim based on a failure to make reasonable adjustments.
The Duty to Make Reasonable Adjustments
Under the Equality Act 2010, employers have a duty to make reasonable adjustments when a disabled employee is placed at a substantial disadvantage compared with a non-disabled person as a result of a PCP. In discrimination cases, a PCP is construed widely to include formal and informal practices, policies and arrangements.
United First Partners Research v Carreras
Mr Carreras was employed as an analyst for United First Partners Research, a firm of brokers. He typically worked from around 8 or 9am until between 9 and 11pm.
In July 2012, Mr Carreras was involved in a bicycle accident which left him with serious physical and emotional injuries, including dizziness, fatigue and headaches. He also experienced difficulty concentrating. The tribunal subsequently determined that this amounted to a disability under the Equality Act 2010.
As a result of his symptoms, on his return to work Mr Carreras began to leave the office between 6.30pm and 7pm each day. After a few months, his line manager began to request that he work later in the evenings and when he agreed, this became an expectation that he would so. Mr Carreras subsequently objected to working late in the evenings. His line manager in response reprimanded him in front of his colleagues and told him that if he didn't like it he could leave. As a result, Mr Carreras resigned and brought claims of constructive unfair dismissal and failure to make reasonable adjustments.
Mr Carreras' claims were unsuccessful at first instance and this case went all the way to the Court of Appeal, which upheld the EAT's decision that an expectation on an employee to work late amounted to a PCP.
Both the EAT and Court of Appeal found that the tribunal had adopted too narrow an approach to the PCP. It had focussed too greatly on Mr Carreras's pleaded case that the expectation to work late was a 'requirement' and had therefore looked for a requirement in the narrowest sense. In reality, Mr Carreras felt he had to work late due to a series of requests which then became an expectation by his employer, and this amounted to a PCP.
A tribunal will now need to consider the nature and effect of the disadvantage suffered by Mr Carreras as a result of the PCP and to address the question of reasonable adjustments.
The ECHR Statutory Code of practice states that the phrase 'PCP' 'should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one-odd decisions and actions.'
The decision in this case highlights that informal or unwritten policies can constitute a PCP for the purposes of establishing a claim for failure to make reasonable adjustments.
Employers should be wary of the potential risks of discrimination where a culture of long hours in the office exists and should take care to ensure that disabled employees are not pressured to conform where this could place them at a substantial disadvantage to their colleagues.
What are the key trends for the period from October to December 2017?
The number of single claims (those made by a sole employee/worker relating to alleged breaches of employment rights) and disposals received by employment tribunals rose by 90% and 21% respectively for the period October to December 2017, against the same period in 2016, resulting in a 66% increase in the outstanding caseload.
The number of multiple claims (those made by two or more people bring proceedings arising out of the same facts, usually against common employer) increased by 467%, to 31,921 claims with disposals decreasing by 55% compared to the same quarter in 2016.
The trend in multiple claims is more volatile than single claims due to large numbers of claims against a single employer which can skew the national figures. For example the increase can be attributed to one large multiple claim against an airline issued in the last quarter of 2017.
Since 2014/15, single claims had remained relatively stable. However, since the abolition of employment tribunal fees on 26 July 2017, around 3,000 new cases have been issued every month.
It is worth noting that this is significantly lower than the number of cases issued before the introduction of tribunal fees, when the average was around 5,000 new cases each month.
It is highly likely that this is due to the introduction of the cap of a year's pay on the maximum tribunal award for unfair dismissal claims, introduced in July 2013, and the obligation on claimants in the majority of cases to commence a period of ACAS early conciliation before they can proceed to file a claim with the employment tribunal, introduced in April 2014.
Employment tribunals received 4,800 applications under the employment tribunal fee refund scheme in the period October to December 2017 (see Legal update, Employment tribunal and EAT fees: refund scheme rolled out in full). Of these, 3,337 refund payments were made, amounting to £2.76 million.
We recently attended the latest Family Business United conference at the Royal Geographical Society in London, an annual event which brings together family businesses and those who advise them.
It is always inspiring to hear the stories of families who have built a lasting and successful business that brings joy, as well as wealth, to the family (the two do not always go together). The theme of the conference was sustainability, which for family businesses means thinking and acting now for the benefit of future stakeholders - family, employees, customers, the wider community and of course the environment.
We heard family members from, among others, Hovione Group (a worldwide pharmaceutical business founded in Portugal), Wyke Farms (a Somerset cheesemaker employing 300 people with a 100% Green operation and a fast growing export market which should see £100m turnover soon), HMG Paints, the largest independent paint manufacturer in the UK supplying specialist paints and coatings around the world from its Manchester factory, and Pentland Brands, a £3bn turnover retail brands business (think JD Sports, Speedo, Berghaus for example).
These and others have all disproved the old adage that family businesses go from shirtsleeves to shirtsleeves in three generations.
Here are some of the tips and observations they gave us:
a love of what you do, strong values, and a very clear purpose, are essential to commercial success
the family should lead, and be seen to lead, that sense of passion and purpose and pass it to the next generation and throughout the business
you can operate at pace as a family business, but make long term commitments
as you grow, take advice - bring in non family members, and take governance seriously. Clarity of role and communication is vital as numbers expand
arriving in a country as a penniless immigrant can work out quite well if you get it right, as the Villax (Hovione) and Rubin (Pentland Brands) families demonstrate
Yes, held the Employment Appeal Tribunal (EAT), where there is medical evidence to show that a type of cancer is present.
In a recent case, the EAT held that an employee with a form of "pre-cancerous" skin cancer was deemed to have a disability for the purposes of the Equality Act 2010 (the Act).
What Does the Law Say?
Under the Act, a person has a disability if they suffer from a physical or mental impairment, which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Cancer is expressly stated as being a deemed disability for the purposes of the Act. A person with this diagnosis therefore does not need to show that their condition satisfies the various elements of the above definition.
Lofty v Hamis t/a First Café
In March 2015, Mrs Lofty was diagnosed with a pre-cancerous lesion after noticing a blemish on her cheek. She had time off of work in order to undergo surgery to have the cells removed, and for related health issues.
In December 2015, Mrs Lofty was dismissed from her job. She brought claims for unfair dismissal and disability discrimination on the basis that she had a deemed disability, namely cancer.
At first instance, the Employment Tribunal held that Mrs Lofty did not have a disability. In their view, the fact that her condition was referred to as 'pre-cancerous' meant that it did not amount to cancer for the purposes of the Act and thus she was not a disabled person. Mrs Lofty appealed.
The EAT held that the medical evidence gave clarification on Mrs Lofty's condition and concluded that she had cancerous cells in the top layer of her skin. The diagnosis of 'pre-cancerous' did not mean that there was no cancer present at all, her condition was a type of the earliest stage of skin cancer. The fact that the cells could not spread to other parts of the body was irrelevant as the Act does not distinguish between invasive and non-invasive forms of cancer.
The EAT therefore held that Mrs Lofty was deemed to have a disability and was protected by the Act.
This case highlights the importance of looking beyond strict terminology when considering whether an employee may have a disability. Employers should be careful to avoid jumping to any conclusions based on the label given to a condition alone.
It is also worth noting that the EAT considered that a 'pre-cancerous' diagnosis might have a different meaning depending on where the cells are located. The medical evidence presented will therefore be crucial to establishing whether a pre-cancerous condition amounts to a disability or not.