Varying the Terms of a Contract
The recent decision of the EAT in Morgan –v- Network Europe Group Limited is a useful case for businesses to take note when trying to vary the terms and conditions of an employee’s contract of employment.
In this case the employer issued a new handbook to its staff, which contained a new “lay-off” clause. The employee signed a form to acknowledge receipt of the new handbook.
Initially the Tribunal held that the employee was bound by the new “lay-off” clause and by the handbook so far as it amended his contract of employment. However the EAT reversed this decision. Since the employee had not signed a new contract with the new “lay-off” clause stated therein, there had been no agreed variation of the contract of employment. The EAT pointed out that had the handbook been accompanied by a new contract with the new “lay-off” clause and duly signed by the employee, then the variation would have been binding.
Daven Naghen, head of our Employment Team added:-
“The moral of the story is that generally speaking if an employer wants to amend an employee’s contract then the employer should get the employee to sign a new contract with the variation. Failing which there is a real risk that the variation will not be binding, especially if the variation does not necessarily have immediate effect.”
If you want advice on terms and conditions of employment for your staff, and/or amending the same then please contact Daven Naghen on firstname.lastname@example.org or 01775 722261.
Telling lies does not necessarily invalidate Insur
It has long been established in English law that an insured cannot successfully claim from an insurer where the insured’s claim has been fabricated or dishonestly exaggerated. This is known as the Fraudulent Claims Rule (“the FCR”). Obviously the FCR was designed to deter fraud. However on the 20th July 2017 the Supreme Court, the highest court in the United Kingdom, considered a more recent extension of the FCR to “collateral lies” which are lies told by the insured to embellish the claim but which are irrelevant because the claim is justified whether the statement is true or not.
An example of a “collateral lie” being the insured producing a false receipt for a stolen computer worth £1,000 when the computer has been stolen and is actually worth £1,000.
The Supreme Court held, by 4 judges to 1, in Versloot Dredging BV and Another v HDI Gerling Industrie Versicherung AG and Others that the FCR does not apply to “collateral lies” which are immaterial to the insured’s right to recover.
The Versloot Case
The insured’s boat had been damaged beyond repair by a peril of the seas, namely very inclement weather. The insured presented a claim to its insurers for a sum in excess of €3 million claiming that the crew had heard the bilge alarm but could not investigate because the vessel was rolling in heavy waters. This was a lie but it was irrelevant to the claim since it was found that a peril of the seas had caused the loss. Initially the courts held that the lie was a “fraudulent device” which did mean that the insurers did not have to pay out under the policy.
The Supreme Court however held that the FCR did not apply to “collateral lies” as the lie was immaterial and irrelevant to the honest claim. The loss was caused by the bad weather and as such the lie was irrelevant.
Daven Naghen head of our Dispute Resolution Team has commented on the case as follows:-
“This ruling does distinguish between on the one hand fraudulent claims which are fabricated or dishonestly exaggerated, and valid claims supported by irrelevant lies or embellished evidence. In the latter these false statements stand to gain nothing more for the insured beyond what it is legally due. I do think that this is a victory for common sense. However I would continue to encourage persons to be entirely frank and honest with insurers in such circumstances, since in particular if the lie is deemed material to the claim then there is a very strong chance that the claim will be rightly rejected by the insurer. In particular inflating the value of an otherwise genuine claim still remains fraud and is likely to lead to a rejection of the claim.”
If you require advice on an insurance claim then please contact Daven Naghen on 01775 722261 or email email@example.com or arrange an appointment or visit our offices at 23 New Road, Spalding, Lincolnshire, PE11 1DH.
Volcanic Ash Chaos for Businesses
The aftermath of the disruption caused by the volcanic ash clouds from Iceland has caused some chaos for businesses. Unfortunately the volcanic ash clouds left many employees stranded away from work, with both employers and employees unaware of their respective rights and obligations.
Daven Naghen, head of our Employment Team at Maples Solicitors LLP has explained that:-
“There is no legal obligation upon an employer to pay normal wages to an employee who is absent from work in such circumstances. Some employers, as a gesture of goodwill, may decide to pay their employees in full for this period of absence. However businesses do have other options. Firstly the employee could have the absence regarded as part of their paid holiday entitlement, therefore reducing the number of remaining holidays. Secondly the employee could have the absence as unpaid leave.”
If you need advice on any such issues relating to your staff then please ring Daven on 01775 722261 or email firstname.lastname@example.org
Do you have empty Commercial Buildings?Watch out !
New rules came into force this year (2012) making it a criminal offence to squat in residential buildings. As a result of this new legislation there is some evidence to suggest that squatters have now started to use empty commercial premises. Calls are now being made for the legislation to be extended to cover commercial properties as well as residential.
Unfortunately, squatting in non-residential properties is only a civil wrong so the only option for owners of commercial properties who find their premises occupied by squatters is to issue Court proceedings in the civil Courts. Owners of residential properties who find their property invaded by squatters can simply call the Police to deal with the matter.
If therefore you have commercial properties which are unoccupied at the present time then you would be well advised to take steps to ensure the premises are as secure as possible to avoid having to take lengthy, protracted and expensive Court proceedings to remove squatters.
For any further information or assistance in this area please contact Gemma Mayer on 01775 722261 or email email@example.com or contact James Turner on 01775 722261 or email firstname.lastname@example.org.
The New Bribery Rules/Donation/charity
The implications of The Bribery Act 2010 are now starting to affect the way various firms or Companies undertake business. Those of you interested in the topic may have noticed the article in the Times on the 5th November 2012. This reported that a top London law firm was suggesting that international firms operating in countries where corporate political donations are illegal could be affected because the Bribery Act encourages formal internal policies on donations.
The Act defines bribery in a very broad way namely, as a gift or donation intended to “induce a person to perform improperly, a relevant function or activity”. Companies can be held legally responsible for donations given by staff if a Court believes the money was given on behalf of the business.
Many businesses are still trying to wade their way through the implications of the Bribery Act 2010 and it is as yet unclear as to how the Courts will interpret this relatively new legislation.
It is not, of course, just political donations which are of concern but also charitable donations. Also of concern is whether, and to what extent Corporate Hospitality may be regarded in certain circumstances as a “bribe”.
Any business which wished to run its business with integrity must ensure that it has proper procedures and policies in place to avoid falling foul of the Bribery Act. Bribery may be committed by a firms staff, partners or directors or indeed anyone authorised to do things on the business’ behalf; representatives and other third parties who act on a business’ behalf; suppliers of the business and clients or customers of the business because they might try to induce a representative of the business to give them more favourable terms.
It is important all businesses have an Anti-Bribery and Corruption Policy and that all staff are trained with regard to the policy.
Should you require any assistance in drafting an appropriate policy tailor made for your business then please contact Gemma Mayer on 01775 722261 or email email@example.com
Health and Safety: Risk Assessment
A risk assessment is an important step in protecting your workers and your business as well as complying with the law. It helps you focus on the risk that really matters in your work place.
In many instances straight forward and relatively inexpensive measures can readily control risk, as ensuring spillages are cleaned up promptly so that people do not slip.
What is a Risk Assessment?
A risk assessment is a careful examination of your work activities, considering what could go wrong and deciding upon suitable control measures to prevent loss, damage or injury in the work place. The assessment should include the control required to eliminate, reduce or minimise the risk.
What should a Risk Assessment cover?
This will depend upon your organisation and may vary depending upon the nature of your work. Risk assessments must consider everyone who could be effected by your business activities, not just employees but contractors, temporary workers, customers and the general public.
Some groups are considered more vulnerable, such as persons under 18 years of age and pregnant mothers. The law specifically requires employers to consider the risks posed to these groups and put in place additional controls if they are required.
Legal duties and obligations
The Management of Health and Safety at Work Regulations 1999 (“MHSW Regulations”) require all employers and the self employed to assess the risks from their work on anyone who may be affected by their activities.
The MNSW Regulations require employers to carry out a systematic examination of their work activities and record the significant findings of the assessment. If you have 5 or more employees then your findings must be recorded in writing.
There are other regulations that require specific risk assessments such as the Manual Handling Regulations, the Control of Substances Hazardous to Health Regulations etc.
Assessing risks in the work place
It is important that risk assessments are carried out systematically and all foreseeable risks are considered. The Health and Safety Executive recommends a 5 step process as follows:-
1. Identify the hazards, namely anything with the potential to cause harm, e.g. electricity, hazardous substances.
2. Identify who could be harmed by these hazards and how.
3. Identify how you manage the risks as present, and what further steps might be required to reduce the risks further. These are your control measures. Risk is the likelihood that damage, loss or injury will be caused by a hazard and how severe the outcome may be.
4. Record your findings and implement them, and inform those at risk of the controls.
5. Review and update your risk assessment on a regular basis, e.g. if the staff, activity or the equipment used changes.
An annual review is often advisable.
When deciding upon control measures the following principles should be applied:-
(a) Can the risk be eliminated/avoided?
(b) Can the risk be contained at source?
(c) Can the work be adapted to suit the individual? E.g. the layout of the work place, choice of equipment and methods of working.
(d) Can engineering or technical controls be used?
Information, instructions and training, and provided personal protective equipment should always be considered as a last resort after the above controls have been considered.
If you need guidance on any health and safety issue at work, then please contact either Daven Naghen on 01775 722261 or email firstname.lastname@example.org or Gemma Mayer on 01775 722261 or email email@example.com.