Dilapidations Explained: What Commercial Tenants and Landlords Need to Know

Dilapidations are a common source of dispute at the end of a commercial lease. They can involve significant sums of money and often come as an unwelcome surprise to tenants who believed they had left a property in reasonable condition. Understanding what dilapidations cover and how claims are assessed is essential for both landlords and tenants navigating the end of a lease.

At their core, dilapidations are about whether a tenant has complied with their lease obligations regarding the property’s physical condition. What a landlord can legitimately claim, and what a tenant is required to put right or pay for, depends almost entirely on the wording of the lease.

What Are Dilapidations?

Dilapidations are breaches of a tenant’s repairing, decorating, reinstatement, or statutory compliance obligations under a commercial lease. These breaches are usually identified when a lease is nearing its end or has already expired, although interim claims can sometimes be made during the term.

A landlord may either require the works to be carried out by the tenant before the lease ends or recover the cost of carrying out those works themselves once the tenant has vacated.

Repair Obligations Under the Lease

Most commercial leases require the tenant to keep the property in repair. The extent of that obligation can vary widely. Some leases impose a full repairing obligation, meaning the tenant must put the property into good repair and keep it in good repair, regardless of its condition at the start of the lease. Others limit the obligation by reference to the property’s initial condition.

Repair does not only relate to major structural issues. It can also include worn flooring, damaged ceilings, broken fixtures, defective services, or deterioration due to lack of maintenance. Whether something constitutes disrepair rather than fair wear and tear is often a key point of dispute.

Redecoration Requirements

Commercial leases commonly require tenants to redecorate the property at specified intervals and again at the end of the lease. These obligations may apply only to internal areas or extend to external areas of the building, depending on the lease terms.

Failure to carry out required redecoration works can form part of a dilapidations claim, even if the property is otherwise in reasonable condition.

Reinstatement of Alterations

Tenants frequently carry out alterations to suit their business needs, such as installing partition walls, additional cabling, signage, or kitchen facilities. Leases often require the tenant to reinstate the property to its original layout at the end of the tenancy.

Where alterations were carried out under a licence for alterations, that document will usually set out specific reinstatement obligations. If reinstatement is required but not carried out, the landlord may include the cost of those works in a dilapidations claim.

Compliance With Statutory Requirements

Many leases place the responsibility on the tenant to ensure the property complies with relevant statutory requirements throughout the term. This can include obligations relating to fire safety, asbestos management, electrical testing and other health and safety regulations.

If compliance has not been maintained, remedial works or investigations may be included in a dilapidations schedule, even if the tenant was unaware of the issue during occupation.

The Dilapidations Process in Practice

The process typically begins with the landlord or their surveyor preparing a schedule of dilapidations. This document sets out the alleged breaches of the lease and identifies the remedial works required and may also include estimated costs.

If the tenant fails to complete the works before the lease ends, the landlord may pursue a monetary claim for damages. This is often referred to as a quantified demand and may include the cost of the works, professional fees, and, in some cases, loss of rent.

Limits on a Landlord’s Claim

The law places an essential restriction on dilapidations claims for disrepair. Under section 18(1) of the Landlord and Tenant Act 1927, damages are capped at the amount by which the disrepair has reduced the value of the landlord’s interest in the property.

This means a landlord cannot automatically recover the full cost of repairs if the works would not increase the property’s value. For example, where a building is to be redeveloped or substantially altered, the impact of disrepair on value may be minimal.

The Importance of a Schedule of Condition

One of the most effective ways for tenants to limit dilapidations exposure is to agree a schedule of condition at the start of the lease. This is usually a photographic record of the property’s condition at the commencement of the lease.

When properly incorporated into the lease, a schedule of condition can limit the tenant’s repairing obligations, so the tenant is not required to put the property into a better condition than it was at the outset.

Managing Risk and Avoiding Disputes

Dilapidations are highly technical and often require both legal and surveying expertise. Early engagement, careful review of lease obligations and realistic negotiation can make a significant difference to the outcome.

Whether acting as a landlord or a tenant, obtaining advice from a solicitor at an early stage can clarify obligations, assess risk, and avoid unnecessary costs and disputes as a lease comes to an end

Employee References – What Is the Law?

In the UK, employers are generally not obliged to provide a reference for a former employee. However, if they choose to do so, they must ensure the reference is fair, accurate, and not misleading. Employers can face legal consequences if they include false or discriminatory information. This article explains when references should be given, what they should contain, and the rights both employers and employees have under UK law.

References remain a key part of the recruitment process, providing potential employers with insight into a candidate’s previous employment and performance. However, many people are unaware of the legal position regarding job references in the UK. Can a previous employer refuse to provide one? What must a reference include, and what can be omitted?

The law offers a clear framework to safeguard both employers and employees when references are written or requested. Guidance from ACAS and GOV.UK details the key obligations, exceptions, and rights involved.

Are Employers Legally Required to Provide a Reference?

In most cases, employers are not legally required to give a reference. They are only obliged to do so if:

• The employment contract, staff handbook, or another written agreement specifies that a reference will be provided; or
• The role is within a regulated industry, such as financial services, where specific rules require references for compliance and fitness checks.

For most other roles, providing a reference is voluntary. However, once an employer agrees to give one, they have a legal duty to ensure the contents are true, fair, and accurate.

What a Reference Can and Cannot Include

Employers can decide how much information to share, from a basic factual reference to a more comprehensive account of performance and conduct.

A factual reference usually confirms employment dates, job title, and, sometimes, the reason for leaving. A detailed reference might include information about skills, abilities, or attitude.

However, there are legal restrictions on what can be included:

• Accuracy: Each statement must be correct and backed by evidence.
• Fairness: Opinions should be fair and grounded in documented facts.
• Non-discrimination: References must not include or be influenced by information about protected characteristics such as age, sex, disability, race, religion or sexual orientation.
• Spent convictions: Employers are not permitted to disclose spent criminal convictions under the Rehabilitation of Offenders Act 1974. However, there are specific exempt roles (for example, certain safeguarding or regulated positions) where spent convictions can still be requested and disclosed.
• Sensitive information: Absences due to maternity, paternity, sickness, or disability-related adjustments should only be mentioned if objectively relevant to the role and lawfully processed under data protection law.

References are typically marked as confidential and should only be sent to the designated recipient.

When Employers Might Face Legal Action

Employers who offer misleading or false references may face various legal consequences:

• Negligent misstatement: If an inaccurate reference results in the employee suffering financial loss, such as losing a job offer, they may claim damages.
• Defamation: if a reference includes false and damaging statements made with malice, the employee may pursue a defamation claim.
• Breach of contract: If a contract or settlement agreement guarantees a reference and one is not given, this could lead to a breach of contract claim.
• Discrimination: References that disclose or depend on discriminatory factors might lead to an employment tribunal claim under the Equality Act 2010.

Employers are therefore encouraged to maintain records that substantiate the contents of any reference they supply.

What Are an Employee’s Rights?

Employees have rights under both data protection and employment law.

• Access to information: Under data protection law, individuals have the right to request access to their personal data. This may include copies of references held by the employer receiving the personal information, though not always from the referee.
• Right to challenge: If a reference is inaccurate or unfair, an employee may request it to be reviewed and corrected.
• Legal recourse: If a job offer is withdrawn due to a misleading reference, the individual may be able to pursue legal action depending on the circumstances.

Best Practice for Employers

Although references are not always compulsory, employers should adhere to best practices to prevent disputes.

• Have a clear written policy regarding providing references.
• Keep references concise and factual unless otherwise agreed.
• Train managers and HR personnel on the legal boundaries of what can be communicated.
• Maintain evidence to support any statements regarding performance or conduct.
• Mark references as private and confidential.

Following these steps helps safeguard both the business and the employee from unnecessary conflict.

A Fair and Lawful Approach

References are a crucial element of recruitment but can also pose legal risks if not handled properly. While there is no overall legal obligation to provide them, any reference given must be accurate, fair, and free from discrimination. Both employers and employees benefit from understanding their rights and obligations in this area.

Unfair Dismissal – Understanding Your Rights and Responsibilities

Being dismissed from a job is never easy, but it can be especially distressing if you believe the decision was unjust. In the UK, employment law provides protection to ensure dismissals are carried out fairly and for valid reasons. This protection is known as unfair dismissal.

Unfair dismissal occurs when an employer terminates an employee’s contract without a fair reason or fails to follow a proper process. It’s not just about why someone is dismissed, it’s also about how the decision is made. Both the reason and the method must meet legal standards.

What makes a dismissal unfair?

Several key elements determine whether a dismissal is unfair.

1. Lack of a fair reason

Employers must have a genuine and legally recognised reason to dismiss an employee. These include:

• Misconduct (e.g. theft, repeated lateness, assaulting or abusing other employees)
• Poor performance or lack of capability
• Redundancy (e.g. the position you hold is no longer required by the business)
• Statutory restrictions (e.g. loss of licence or regulatory approval required for the job)
• Some other substantial reason (e.g. company restructuring)

These five reasons are the only potentially fair categories under UK law, but their interpretation by tribunals can be broad. If no valid reason is given, the dismissal may be challenged as being unfair.

2. Failure to follow a fair procedure

Even when a fair reason exists, the employer must follow a proper process. This includes investigating the issue, providing warnings or improvement opportunities where appropriate, holding a formal meeting, and giving the employee a chance to respond. The ACAS Code of Practice on Disciplinary and Grievance Procedures offers guidance on how this should be done.

3. Automatically unfair reasons

Some reasons for dismissal are always unfair, regardless of how long the employee has worked or the procedures followed. These include being dismissed for:

• Being pregnant or on maternity leave
• Requesting flexible working
• Whistleblowing (reporting wrongdoing)
• Participating in official industrial action
• Asserting a statutory right (such as the right to minimum wage or holiday pay)

In such cases, an employee doesn’t need any qualifying period to bring a claim.

4. The qualifying period

Currently, for most claims of unfair dismissal, employees must have been continuously employed by their employer for at least two years. However, this requirement doesn’t apply in cases of automatic unfair dismissal or discrimination.

What might count as unfair dismissal?

Some common examples include:

• Terminating an employee’s contract for raising health and safety concerns
• Dismissing someone due to pregnancy or maternity leave
• Letting an employee go because they took part in lawful industrial action
• Failing to follow a proper disciplinary process before dismissal for performance issues

These situations can give rise to a claim at an Employment Tribunal.

Constructive dismissal

Constructive dismissal may be considered a form of unfair dismissal. Constructive dismissal occurs when an employee feels forced to resign because their employer has seriously breached the terms of their employment contract. This could involve a single serious incident or a pattern of behaviour that makes the working environment intolerable. Common examples include not being paid, being bullied or harassed, or having duties changed without consultation. The employee must resign soon after the breach and clearly state that this is the reason for their departure.

What happens if a dismissal appears to be unfair?

If an employee believes they have been unfairly dismissed, they can make a claim to an Employment Tribunal. Before doing so, they must first undergo Early Conciliation with ACAS, which provides an opportunity to resolve the matter without going to court.

If the tribunal finds in the employee’s favour, it may:

• Order reinstatement (return to the job)
• Order re-engagement (a similar role)
• Award compensation (based on factors like loss of earnings)

The maximum compensation is typically capped, although there are exceptions for whistleblowing or dismissals related to discrimination or other protected grounds. More guidance can be found on the GOV.UK website.

Why it matters

The law governing unfair dismissal helps ensure that people are not dismissed arbitrarily or without the proper procedures being followed. For employers, it serves as a reminder to follow clear and lawful procedures. For employees, it provides a route to challenge decisions that feel unjust.

If you’re facing dismissal—or considering dismissing a staff member—it’s essential to seek professional advice before taking any action. The cost of getting it wrong can be high, both financially and in terms of reputation.

Why good sense may make for better neighbours than good fences  

The well-worn saying “good fences make good neighbours” is often trotted out during boundary disputes, to reinforce the value of clear dividing lines between properties.  But when Robert Frost popularised the saying in his poem Mending Wall, he was challenging this instinct for barriers – suggesting they can create division where none is needed.

And that’s a useful reminder in boundary disputes, where it’s often one neighbour’s rigid view of where the dividing line should be that sets things off. When tensions rise, a measured approach – rather than digging in, literally or legally – can make all the difference.

Whether it’s a hedge, a fence or a garden path at the centre of the row, legal proceedings can quickly escalate. Not only are boundary disputes notoriously complex to resolve, but they can sour neighbourly relations and lead to significant costs. The courts have emphasised that when it comes to defending your patch, staying calm and knowing when to step back could be the best approach.

Two recent cases fought all the way to the highest courts have highlighted the challenges around long-term use of land when it leads to a dispute over rightful ownership.

In the latest decision, the Supreme Court clarified how the law should apply when the legal boundary has shifted from its original position. The case concerned a modest strip of land, just 1.4 metres at its widest point, yet the legal battle was fought across three different courts before final resolution.

A previous owner had put up a fence and planted a hedge along what he understood to be the boundary between the two properties.  This included a small strip of land belonging to next door, but the error was left unchallenged until almost two decades later, by which time the subsequent owner had built an extension with a footprint that included the small patch of ground.

In situations where someone occupies land without permission, they may be able to claim adverse possession and apply to the Land Registry to be registered as the legal owner. Under the Land Registration Act 2002, this is possible after ten years of possession, where the occupier reasonably believes they own the land.

The central issue in this case was whether that ten-year period of belief had to be the ten years immediately before the application – or whether it could be any ten-year period during the time the land was possessed. The Supreme Court confirmed that it did not need to be the most recent ten years, opening the door for more successful claims where the belief in ownership changed over time.

Meanwhile, another long-running case saw court costs hit £300,000 by the time the case was heard in the Court of Appeal.  Again, the case involved a narrow strip of land – this time a small stream which ran between the properties, and which was fenced in by a new homeowner after they moved in.

Long-standing neighbours argued they were entitled to register the stream as their own because they had used it without challenge for a significant period before the new homeowner arrived and while the lower courts ruled against them, they were successful on appeal.  The Court of Appeal’s decision found that even though the land had not been formally claimed, squatters’ rights had been established long before the property title was first registered in 2003 after the Land Registration Act 2002 came into force.

“These cases proved a costly reminder that property deeds are not always conclusive proof of the extent of ownership, because long term possession may affect those rights,” said Miss Amy Cusworth, dispute resolution specialist at Rotherham-based Firm, Oxley & Coward Solicitors LLP.

They added: “When disputes arise, it’s vital to seek early legal advice and to consider alternative dispute resolution methods, such as mediation. Tempers often run high in boundary cases, but aggressive tactics rarely pay off and can make things worse.

“While mediation may not suit every situation, it’s often quicker, cheaper and less damaging than going to court, particularly when you’ll be seeing your neighbour over the garden fence for years to come.”

As for prevention, a thorough review of property deeds, title plans and boundaries – particularly when buying or selling a property – can reduce the risk of dispute later. For those with shared access or unclear boundary features, a formal agreement or updated Land Registry plan can also be a wise investment.

“Once you’re in a legal battle over your borders, even the narrowest sliver of land can come at a high price,” added Miss Amy Cusworth: “It’s also worth remembering that any dispute with a neighbour, including over boundaries, must be declared when selling a property.  Failing to do so could lead to legal action from a buyer later down the line, so even if tensions ease, any dispute can have lasting implications.”

[This is not legal advice; it is intended to provide information of general interest about current legal issues].

Could fewer rental properties be the price of positive action for tenants?

The Renters’ Rights Bill is set to overhaul tenancy laws in England and Wales, promising stronger protections for tenants, including an end to ‘Section 21’ repossessions. Now in its second reading in the House of Lords, the legislation aims to curb unfair evictions, but concerns are growing that it could unintentionally shrink the rental market.

Also known as ‘no fault evictions’, the Section 21 procedure – named after the relevant section of the Housing Act 1988 – currently allows landlords to regain possession of their properties without having to provide a reason. It is often used in cases where tenants fail to pay rent instead of lengthy court proceedings, or when landlords need to sell a property or to move in themselves.  But it is also seen as a loophole for a minority of unscrupulous landlords who make use of it for ‘no reason’ evictions, such as in retaliation for complaints about property conditions or to pressure tenants into accepting rent increases.

Under the new system, landlords will first have to prove they have valid grounds for eviction against certain specific legal grounds, such as rent arrears, anti-social behaviour, selling or occupying the property themselves, or a significant breach of the terms of the tenancy agreement.  The different grounds have varying notice periods, ranging up to four months.

With county courts already under significant pressure, and delays in hearings and bailiff appointments stretching for months, proving grounds for eviction is expected to increase the volume of contested cases, further slowing down an already overstretched system.

“While the sector welcomes greater security for tenants, the changes are expected to have a significant impact on the time and cost involved in regaining possession of a property, even where landlords have transparent and valid reasons,” explained dispute law expert Miss Amy Cusworth of solicitors Oxley & Coward Solicitors LLP in Rotherham.  “It could take as much as a year to evict a non-paying tenant in some areas.  If a claim is defended, the process could take even longer — potentially up to 18 months from the point of first non-payment.”

For landlords with mortgages, or those relying on rental income for retirement, these delays could pose serious financial risks.  Faced with the potential of extended legal battles and accumulating rent arrears, the predictions are that many small-scale private landlords will be forced to reconsider their position in the rental market.

If more private landlords sell up and reduce the number of rental properties available, it could drive up rents and result in bad news for tenants.

Miss Amy Cusworth added:  “With the Bill now going through its final stages in the House of Lords, these changes are moving from the horizon into the immediate sightline of landlords.  It’s important they review tenancy agreements and familiarise themselves with the new legal framework.  If they’re working with letting agents, they should be conducting a full review of all current tenancies and asking what processes are in place to manage risk at every stage and to ensure compliance with leases.

“Getting some specialist guidance on the new legislation early on will help in navigating the evolving rental landscape and avoid unnecessary disputes and potential loss of income later.”

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

Debt Collection – An Overview

Recovering a debt from someone who owes you money can be frustrating and challenging. The steps taken in the debt collection process depend on whether the debt is a business debt or a consumer debt, or whether you are a debt collection agency seeking to recover a debt for a client.

What is debt collection?

Debt collection is a process through which an individual or an organisation recovers a debt due to it. When all credit control actions have failed to encourage the debtor to pay, the next stage is usually formal debt collection.

When you decide to recover the debt yourself, there are defined steps you must follow. Debt collection agencies that deal with consumer debts are regulated by the Financial Conduct Authority.

The debt collection process

There is a process that must be followed in every debt collection. The steps you must take in relation to the debt collection process depend on whether the debt is a business-to-business debt or a business-to-consumer debt.

Business to business debt collection

The first stage in recovering a business to business debt is to have your solicitor send a Letter before Action to the debtor advising that unless the debt is settled, court proceedings will be raised.

Letter before Action

The Letter before Action should include:

• The amount of the debt and the date it was due
• The sender’s name and address
• Copies of relevant documents
• A summary of the facts
• A clear explanation of the position and legal basis of the claim
• A time limit for the recipient to comply with the request
• Details of the steps the recipient must take to avoid legal action

The debtor should be afforded a period of 14 days in which to respond and settle the debt. If the debtor fails to respond positively to make arrangements for payment or fails to pay the debt on the expiry of 14 days, the next stage is to issue court proceedings.

Court proceedings

The proceedings for debt collection should include:

• A Claim form: A form that includes details of the debt
• A Response pack: A pack that includes forms to allow the debtor to respond to the claim

In addition, an Issue fee must be paid to the court to file the claim

If the debtor fails to file a defence within 14 days, you can then seek a judgement against the debtor.

Clearly, should the debtor defend the proceedings, a hearing will be required to resolve matters before any judgement can be issued.

Enforcing the judgement

Once you receive the judgement, you can enforce it against the debtor. Enforcement action can take the form of one or more of the following actions until the debt is settled:

• Arrangements for instalment payments
• Sending the Bailiffs or High Court Enforcement Officers (depending on the value of the debt)
• Serving a Charging Order
• Attaching earnings
• Seeking a Third party debt order
• Bankruptcy/winding up proceedings

Business-to-consumer debt collection

Before you can raise court proceedings in business-to-consumer debt collection, you must send a Letter of Claim to the debtor. This letter should contain the information and documentation contained in the pre-action protocol for debt claims. The letter of claim should include:

• the amount of the debt
• whether interest or other charges are continuing
• where the debt arises from an oral agreement, who made the agreement, what was agreed (including, as far as possible, what words were used) and when and where it was agreed
• where the debt arises from a written agreement, the date of the agreement, the parties to it and the fact that a copy of the written agreement can be requested from the creditor
• where the debt has been assigned, the details of the original debt and creditor, when it was assigned and to whom
• if regular instalments are currently being offered by or on behalf of the debtor, or are being paid, an explanation of why the offer is not acceptable and why a court claim is still being considered
• details of how the debt can be paid (for example, the method of and address for payment) and details of how to proceed if the debtor wishes to discuss payment options
• the address to which the completed Reply Form should be sent

The debtor has 30 days to reply to the Letter of Claim. If the debtor fails to reply, you can then commence the recovery process.

If the debtor responds

If the debtor responds, they should use the standard Reply Form which you send with the Letter of Claim. The debtor can also request copies of documents they believe are relevant. You should not commence court proceedings less than 30 days from receipt of a completed Reply Form or 30 days from providing the debtor with any documents they request. Finally, if the debtor informs you they are seeking legal advice, you must allow them a reasonable period of time in which to do that.

Document disclosure

Both you and the debtor should exchange relevant documents as soon as possible. This will help each understand the other’s position. If you cannot provide any documents requested, you must explain why within 30 days of a request for these.

Seeking resolution and alternative dispute resolution (ADR)

It is important to try to seek a resolution to the matter before proceedings are raised. Alternatively, you may consider or suggest suitable ADR. It is important to note here that if the debtor reached an agreement which they subsequently breach, you must start this process from the beginning before issuing court proceedings.

Final Letter before Action and further procedure

If the debtor responds to the letter of claim but fails to reach agreement or settle the debt, you should give them at least 14 days’ notice of your intention to issue court proceedings. This procedure is identical to the procedure followed in a business to business debt recovery.

Final thoughts on debt collection

The debt collection process must be observed to ensure you stand the best chance of recovering the debt. Should you fail to follow the procedure prior to issuing proceedings, your claim will fail and you will be unlikely to receive judgement.

Follow the correct process, whether it be a business-to-business debt or a business-to-consumer debt and you will stand the best chance of receiving judgement to allow you to successfully recover of the debt due.

Rights of way & agricultural land

The public have a right to roam much of the great outdoors in England. Open access land includes areas like downland, heathland, and mountains where the public can walk freely. However, unlike Scotland, there is no universal right to roam most of the land for recreational purposes. In England, the public have rights of access to land over established rights of way.

What is a right of way?

A right of way is a right enjoyed by the public to cross over someone else’s land. In a rural setting, that “someone else” is likely to be a farmer or landowner.

Types of Rights of Way

Rights of way can be categorised into several types, each with its own specific characteristics and uses. Understanding these distinctions is crucial for both landowners and the public to ensure proper use and maintenance.

• Public Footpaths: These paths are exclusively for pedestrians. They allow the public to walk across private land, providing access to the natural environment without the use of vehicles. Public footpaths are typically marked with signs or other indicators to guide users.
• Public Bridleways: Open to pedestrians, horse riders, and cyclists, public bridleways offer a versatile route for various forms of non-motorised travel. These paths are also marked with signs, ensuring that all users are aware of their rights and responsibilities.
• Byways Open to All Traffic (BOATs): These routes are accessible to all types of traffic, including motorised vehicles. BOATs are essential for providing comprehensive access across different terrains and are clearly marked to inform users of their rights.
• Restricted Byways: While these paths are open to walkers, horse riders, cyclists, and non-motorised vehicles, they come with certain restrictions. Restricted byways are designated to balance public access with the preservation of the natural environment and are marked accordingly.
• Permissive Paths: Unlike the other types, permissive paths are open to the public by the landowner’s permission. These paths are not protected by law and can be closed or restricted at any time, offering a flexible option for landowners who wish to provide temporary access.

Understanding these categories helps ensure that public rights are respected and that the natural environment is preserved for future generations.

Farmers and landowners must ensure that public rights of way are accessible and properly maintained. This includes keeping paths clear from obstruction and ensuring gates are in good working order. However, landowners can apply to have paths diverted or closed, if necessary, often due to farming operations.

How are rights of way established?

Rights of way have existed for hundreds of years. Many of these are simply paths that have been used by the public which then are usually shown on maps and, over time, become recognised rights of way. These paths are officially documented on a legal record known as the Definitive Map and Statement. The basic requirement is that a path or roadway must run between two public points, crossing privately owned land and is or has been used by the public for at least twenty years without interruption.

Creation of New Public Rights of Way

Creating new public rights of way involves a formal process of designation, ensuring that new paths meet specific criteria and serve the public interest. This process is typically initiated by the landowner or the local authority.

To designate a path as a public right of way, the following conditions must be met:

• Public Use for 20 Years: The path must have been used by the public for at least twenty years. This long-term use demonstrates the path’s importance and necessity for public access.
• Lawful Purpose: The path must be used for lawful purposes, such as recreation or access to a public place. This ensures that the path serves a legitimate need and benefits the community.
• Unobstructed Access: The path must not be obstructed or closed by the landowner or any other person. Continuous, unhindered access is crucial for a path to be recognised as a public right of way.

Local authorities play a pivotal role in this process, assessing applications and ensuring that all criteria are met before a path is officially designated. This careful evaluation helps maintain a balance between public access and the rights of landowners.

How do you find out if there is public access on your land?

If you are a landowner, you must keep a public right of way visible and must not obstruct or endanger users. Public rights of way are recorded in various locations. Your first port of call will be the local authority but records of public rights of way can also be recorded by national part authorities, county councils, some district councils, metropolitan boroughs and unitary authorities. The rights of way are usually shown on a definitive map of the area.

Using rights of way

The Countryside and Rights of Way Act 2000 covers the right of access to the countryside, public rights of way and the protection of nature and wildlife. The Act details the responsibilities of anyone using a public right of way. These include not damaging hedges, fences and walls and not leaving gates open when they are found shut.

The Countryside Code is the Government’s guide for visitors to the countryside and advice for land managers and covers the use of public rights of way. The Code contains guidance rather than legislation.

User Responsibilities

Users of public rights of way have certain responsibilities to ensure that they use the paths safely and respectfully. Adhering to these guidelines helps preserve the natural environment and ensures that all users can enjoy their rights without conflict.

• Respect Other Users: Whether you are a pedestrian, cyclist, or horse rider, it is essential to respect other users of the path. This includes being considerate and giving way when necessary to avoid accidents and ensure a pleasant experience for everyone.
• Keep to the Right-Hand Side: Staying on the right-hand side of the path helps manage traffic flow and reduces the risk of collisions, especially on narrower paths.
• Control Your Dogs: Keeping dogs under control is vital to prevent them from disturbing wildlife, livestock, or other path users. This responsibility ensures that the natural environment remains undisturbed and safe for all.
• Avoid Littering: Littering not only spoils the beauty of the countryside but can also harm wildlife. Always take your rubbish with you and dispose of it properly.
• Do Not Damage the Path: Avoid causing any damage to the path or surrounding environment. This includes not damaging hedges, fences, or walls and not leaving gates open when they are found shut.

By following these guidelines, users can help maintain the integrity of public rights of way and ensure that these paths remain accessible and enjoyable for everyone.

Obligations on the landowner

Where a public right of way crosses your land, you have certain obligations in relation to it. The most important of these is to keep it open, free of obstruction and available to the public. Of course, the rules are much more detailed than that simple, broad statement. For instance, if a farmer were to plough the right of way, Section 134 of the Highways Act 1980 requires it to be reinstated within fourteen days. Failure to reinstate can result in a fine.

Natural England has published guidance on public rights of way for landowners which apply to agricultural or any other land.

Maintenance of Rights of Way

The maintenance of public rights of way is a shared responsibility between local authorities and landowners. Proper maintenance ensures that these paths remain safe, accessible, and enjoyable for all users.

The roles of the Local Authority and Highway Authority

Local authorities and highway authorities play crucial roles in the management and maintenance of public rights of way. Their responsibilities ensure that these paths are properly designated, maintained, and accessible to the public.

What do you do if you experience a problem with public rights of way?

If you discover a problem with a right of way, contact the rights of way section of the highway authority through whose area the route passes and explain the problem to them.

Local councils can implement initiatives like the Rights of Way Improvement Plan to improve accessibility and address community needs. There are also many organisations dedicated to keeping the countryside open and accessible. For those who like walking, you may consider Ramblers. For those with an interest in the countryside and open spaces, you might consider Open Spaces Society.

NDAs – an overview

A non-disclosure agreement (NDA), otherwise known as a Confidentiality Agreement, is a mechanism used, normally in an employment or business situation, to keep confidential information confidential. NDAs can be used in a number of settings and for a number of purposes. The principles, however, are common. One or both parties are obligated not to disclose information that is considered to be confidential.

NDAs can also be incorporated into another document. For example, there may be non-disclosure clauses in an employment contract or a Settlement Agreement in a termination of employment designed to keep company confidential information confidential.

Importantly, NDAs are legally binding agreements to keep information confidential.

There are two types of NDAs:

• Unilateral NDA
• Bilateral or Mutual NDA

Unilateral NDA

A Unilateral NDA imposes restrictions on one party to the agreement to protect the disclosure of confidential information.

Bilateral or Mutual NDA

A bilateral or mutual NDA binds all parties to keep the confidential information confidential.

What types of situations require NDAs?

NDAs can be used in many situations. Some examples of these are as follows:

• In pre-contract or tender negotiations where confidential information must be disclosed to enable the parties to reach agreement as to the terms of a contract. These types of NDAs tend to be mutual NDAs with the terms being binding on both parties.
• In the mergers and acquisitions process where the acquiring company will be asked to sign a confidentiality agreement to prevent it disclosing company confidential information held by the acquisition target.
• In Employment Contracts where the employee has access to secret or confidential company information which gives the employer a competitive advantage.
• Product of scientific development collaborations to preserve the integrity of intellectual property owned by the collaborating parties.
• Settlement Agreements leading to termination of employment to prevent disclosure of confidential company information after the employee leaves the company.

These are examples of where NDAs can be used to protect secret or confidential information.

The structure of NDAs

There are common elements in the structure of NDSs, whether they are incorporated into wider agreements or as a stand-alone agreement. The key elements of NDAs are:

The parties: this will clearly identify the parties to the agreement. It may also include those associated with the parties, such as professional advisers, agents, sub-contractors and employees;

Definitions: the purpose of this it to set out the types of confidential information covered by the NDA and how it is to be managed;

The Obligations: the obligations of the parties regarding the confidential information to keep the information confidential;

Destruction/Return of confidential information: the specifics of how the confidential information is dealt with on termination of the contract;

Exclusions: the exclusion of information which is already or may come into the public domain but not as a result of the actings of the parties;

Duration: there may or may not be a time period during which the NDA will endure;

Remedies for breach: this sets out what happens if there is a breach of the agreement and release of the confidential information.

NDAs and Public Authorities

If you enter into NDAs with public authorities, it is prudent to exclude the operation of the following pieces of legislation:

• The Freedom of Information Act 2000
• the Freedom of Information (Scotland) Act 2002
• the Environmental Information Regulations 2004 (the FOIA)

There is nothing sinister about excluding this legislation from an NDA. It’s simply that there is likely to be company or contractual or know-how information or intellectual property to be disclosed to the public authorities which those contracting with them would wish to keep confidential for commercial reasons.

Are there circumstances where NDAs are unenforceable?

There are certain circumstances, especially in employment situations, where NDAs are unenforceable. These circumstances are:

1. Whistleblowing.
2. Reporting a Crime to the Police.
3. Discussing pay with work colleagues for reasons relating to equal pay.

Abuse of NDAs

The subject of misuse of NDAs came to the fore when the MeToo movement began in the US and very quickly, women spoke up about being forced to sign NDAs following sexual harassment by Harvey Weinstein. NDAs were used to silence women Weinstein had abused.

In September 2023 the Treasury Select Committee inquiry heard evidence from the Can’t Buy My Silence campaign about NDAs being used to cover up sexism and discrimination in the City of London.

Prior to the General Election in July 2024, the Conservative Government had plans to introduce legislation to outlaw the misuse of NDAs. Due to the General Election, this legislation did not make it to the Statute Book.

Used properly, NDAs respect confidential information

When parties enter into NDAs, they allow the parties access to confidential information for commercial and business reasons. They come with reasonable obligations not to disclose the confidential information to anyone not entitled to see that information. It is only proper that there should be sanctions for those who breach such agreements and NDAs serve that purpose.

Houses and neighbour disputes

Neighbour disputes can cause serious stress, anxiety and even fear. A range of issues could be described as neighbour disputes. Here are some examples:

• Boundary disputes
• Noise complaints
• Anti-social or threatening behaviour
• Shared property access
• Dumping rubbish
• Blocking shared driveways

Neighbour disputes are never nice and can take an age and a willingness to compromise if they are ever to be resolved. Sometimes they are impossible to resolve due to the stance of one or both of the parties.

There are various tactics you can employ if you are having a neighbour dispute. Mediation may well be a sensible way to seek resolution. That, however, tends to depend on both parties being reasonable. That is not always the case.

If the problem is a persistent noise nuisance or dumping rubbish, you might consider contacting the local environmental health department, or if there is anti-social or threatening behaviour, you might consider contacting the police. As a last option, you might need to resort to the courts. There is no single answer when dealing with a neighbour dispute.

What happens if I want to sell my house whilst a dispute is ongoing?

You may have had enough and decide to sell your house and leave the problem behind you. A nice, straightforward solution. Except, it’s not quite like that.

When you sell your house or flat you must disclose material information. This gives the buyer essential information about the property. You do this through completing a TA6 Property Information Form. This form contains fourteen questions with question number two asking about disputes and complaints.

When you complete this question, you must disclose any ongoing dispute you are having with your neighbour. You must also explain what has happened and what has been or is being done to resolve the dispute. In addition, you will be asked to answer questions about past disputes, how they were resolved and whether they are likely to lead to disputes in the future.

This question is subjective and if you have taken any formal steps, such as complaining to the council or environmental health, or had your solicitor write to your neighbour, you must disclose this here.

The purpose of the disclosure of material information is to allow the buyer to make a judgement as to whether to proceed with the purchase. Failure to disclose the existence of a neighbour dispute, past or present, could allow the buyer to take legal action against you for misrepresentation.

It should also be noted that question one of the TA6 form asks about boundaries and, again, it is important to clearly state the position regarding boundaries, who is responsible for maintaining them and whether there have been any issues with neighbouring owners regarding the boundaries.

Finally, if you have had a dispute with a neighbour which you have managed to resolve amicably without further action, it is unlikely you will have to declare this.

What can you do if your neighbours are renting the property?

You should take the same approach in trying to resolve the dispute, irrespective of whether the neighbour is the owner or the tenant. You might also consider complaining to the neighbour’s landlord about their conduct. However, it is difficult to hold landlords to account for the conduct of their tenants. The only time you might be successful in holding the landlord legally responsible is if they are deliberately encouraging their tenant’s behaviour.

Does a landlord need to declare a neighbour dispute when renting a property?

Landlords have many responsibilities for the properties they let. Such responsibilities include gas, electrical and fire safety, responsibility for repairs and ensuring the property does not present a health and safety hazard.

However, when letting property, landlords do not need to declare neighbour disputes. It can be argued that if the former tenant was in dispute with a neighbour, the simple fact that they have moved out will bring an end to the dispute.

Always try to resolve neighbour disputes

It can be massively frustrating living next to a disruptive neighbour. Taking action might simply exacerbate an already difficult situation. It is important to take steps to try to resolve the dispute with your neighbour. However, if you sell your house when the dispute is ongoing, you must disclose the dispute. Failing to do this could lead to action against you if the buyers of your house can show that you have misrepresented the position. This might lead to a significant financial penalty, compounding an already unhappy situation.

Why employers need a reflective response to employee beliefs

Recent tribunal judgements on freedom to express gender critical views highlight the growing challenge for employers in safely navigating discrimination in the workplace in the face of increasingly complex social attitudes.

In one victory for gender-critical views, an employment tribunal said that being branded transphobic for holding gender critical views and expressing them was an insult.

Jo Phoenix, a criminology professor at the Open University, had established a network to undertake gender critical research but found herself blocked from speaking on the topic. The tribunal ruled she had suffered victimisation, harassment and direct discrimination due to the university’s failure to protect her from ill treatment arising from her gender-critical beliefs.

This followed hard on the heels of a discrimination ruling in favour of Rachel Meade, a social worker in Westminster City Council, who posted feminist views about the gender debate on her private Facebook page.  A transgender colleague, who was connected on Facebook, complained the views were transphobic and Social Work England responded by initiating a fitness to practise investigation, which triggered Meade’s suspension by her employer.

Criticising the action, the tribunal judgment said this was “indicative of a lack of rigour in the investigation, and an apparent willingness to accept a complaint from one side of the gender self-identification/gender critical debate without appropriate objective balance of the potential validity of different views in what is a highly polarised debate”.

In the UK, the Equality Act 2010 prohibits discrimination and harassment that is related to a protected characteristic.  These are age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation; also pregnancy and maternity where the protection against harassment is subject to slightly different rules.

Harassment is unlawful and occurs when a worker is subjected to unwanted conduct related to a protected characteristic that violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.  Examples include making offensive sexual comments, or abusing someone for their race, religion or sexual orientation.

It means all employers have a duty of care to protect their workers and may be liable for discrimination or harassment in the workplace if they have not taken reasonable steps to prevent it.

Said employment law expert  Miss Amy Cusworth  of Rotherham town solicitors Oxley & Coward Solicitors LLP :  “These tribunal cases highlight the growing pressure on employers to keep pace with both the law and changing attitudes across society.

“Employers are undoubtedly finding it increasingly difficult to deal with complaints where an employee’s beliefs conflict with those of their organisation, other staff or customers, and are searching for clear guidelines.  But it’s not possible to define in black and white terms as each case is fact sensitive.  Having up to date equal opportunities policies is important, but more important is to avoid taking sides without proper review and investigation.

“Perhaps the simplest takeaway is to reflect carefully, recognising that when people voice beliefs they may not fit neatly into a right or wrong category, even though others may find them distasteful or distressing.”

J Phoenix v The Open University

R Meade v Westmister City Council and Social Work England

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

Understanding Dyscalculia: A Comprehensive Guide for Employers

This article aims to provide a comprehensive guide for employers regarding dyscalculia, a mathematical learning difficulty affecting approximately 5% of the UK population. In it, we’ll look at dyscalculia, its impact on employees and the legal obligations employers have under UK law to support neurodivergent employees.

Understanding Dyscalculia

Dyscalculia refers to a specific learning difficulty concerning mathematics. It involves difficulty understanding number concepts, performing calculations, timekeeping, measurement and spatial reasoning. On the other hand, individuals with dyscalculia often exhibit strengths such as creativity, strategic thinking, problem-solving and intuitive thinking.

Legal Perspective

In the UK, the key legislation concerning workplace neurodiversity is the Equality Act 2010. It consolidates and expands previous equality laws, protecting neurodivergent workers, who are likely to be classified as ‘disabled’ under the act. This affords them vital rights to reasonable adjustments, along with protection against discrimination, harassment and victimisation.

Defining Disability under the Equality Act 2010

For a condition to be considered a disability under the Equality Act 2010, it must be a ‘physical or mental impairment’ that ‘has a substantial and long-term adverse effect’ on a person’s ‘ability to carry out normal day-to-day activities. Therefore, neurodivergent conditions like dyscalculia, which are lifelong cognitive differences, likely meet the legal definition of ‘long-term’.

Dyscalculia in the Workplace: Challenges and Opportunities

The symptoms of dyscalculia can pose challenges for individuals in their professional lives. These may include difficulties with understanding and working with numbers, performing calculations, and remembering mathematical facts, issues related to negative attitudes, time-keeping and planning schedules.

However, supporting neurodivergent employees can offer unique opportunities for organisations. The distinctive cognitive profiles of neurodivergent individuals can bring novel perspectives, creative problem-solving and unique skills to the workplace.

Managing Dyscalculia: Reasonable Adjustments

The Equality Act 2010 requires employers to make ‘reasonable adjustments’ for disabled employees to alleviate any substantial disadvantages they might face. These adjustments can be simple and inexpensive but significantly improve workers’ happiness and performance.

Examples of Reasonable Adjustments

Examples of reasonable adjustments for dyscalculic employees can include:

• Using a calculator for tasks involving calculations
• Employing calendars and schedules to plan daily activities
• Setting alarms to keep track of time
• Structuring breaks into long meetings
• Providing a second computer screen
• Agreeing on a later start and finish time to avoid rush hour
• Varying dress code
• Providing noise-cancelling headphones to workers who are hypersensitive to sound
• Varying role responsibilities or agreeing to a transfer to a similar post, where appropriate
• Providing coaching or a mentor system

Implementing Reasonable Adjustments

While identifying potential adjustments, employers should always consult with the worker and not implement changes without their consent. If an employer can’t afford an adjustment, the worker might be eligible for support under the Access to Work scheme.

The Public Sector Equality Duty

The Equality Act also places an additional ‘public sector equality duty’ on public sector employers. This duty requires them to eliminate discrimination, advance equality of opportunity and foster good relations between disabled and non-disabled people.

Legal Considerations: Proving Disability

When an employer disputes that a person has a disability under the Equality Act, the burden of proof falls on the claimant. For invisible disabilities, such as dyscalculia, this is likely to involve providing or commissioning expert evidence.

Conclusion

Understanding dyscalculia and its implications is crucial for employers to ensure a diverse, inclusive, and productive workplace environment. By recognising the unique strengths of neurodivergent employees and making reasonable adjustments, employers can not only comply with the law but also create a workplace that values individual strengths and promotes innovation.

Gaining possession of your property – Landlords – Section 8 notices

What form of notice should you use:

The form of notice used to make your tenant aware that you wish to gain possession of your property will depend on several factors, such as the type of tenancy agreement you have your reason for wanting to regain possession of your property.

• If you have an Assured Tenancy, you may only use the section 8 procedure.
• If you have an Assured Shorthold Tenancy, you may potentially use the section 8 or section 21 procedure.

When you have the option of using either the section 8 or section 21 procedure, you must consider your reason for repossession. For example, if possession is required because your tenant is in rent arrears and you want to recover those arrears, then a section 8 notice could be more appropriate. Rent arrears are not recoverable under the section 21 procedure. If your aim is simply repossession of the property, then the section 21 procedure could be more appropriate as if the notice is served correctly possession should be granted and the case could be dealt with without a hearing, making it more cost effective. However, beware. You cannot serve a section 21 notice to bring a tenancy to an end before date when the fixed term of the tenancy would come to an end.

When a section 8 notice can be used:

Serving a section 8 notice is governed by Section 8 of the Housing Act 1988.  Under the section 8 procedure, there are mandatory and discretionary grounds that a landlord can use to gain possession, under which the Courts will, or may under their discretion, order possession of a property.

Some examples of the mandatory grounds, where the courts must grant possession include:

• The landlord requires the property to use as their principal home;
• The tenant has engaged in anti-social or criminal behaviour; or
• There are serious rent arrears (i.e. when rent is payable monthly, the tenant is at least two months in arrears).

Some examples of the discretionary grounds which can be relied upon, upon which the court may order possession, include:

• There is suitable alternative accommodation which can be made available to the tenant;
• The tenant persistently delays in payment of rent; or
• The condition of the property has worsened due to the tenant or their occupants.

Length of Section 8 Notice:

After establishing which ground(s) you want to rely upon, notice must be validly served on the tenant in the form prescribed by the legislation, and must be give the correct amount of time for the tenant to vacate the property. The length of time the tenant must be given before they have to leave the property, depends on which grounds you are giving notice under, and ranges between two weeks’ and two months’ notice.

After the notice period has ended, if the tenant has not vacated the property, you have one year from the date of the notice to start possession proceedings in the court to enforce the notice and ask for a possession order to be granted.

Section 8 Possession Proceedings:

To begin the possession proceedings, you must complete a claim form and particulars of claim form. These forms will include details of the grounds you specified in the original section 8 notice which you served that you are relying upon to gain possession, evidence relied upon to persuade the court the ground exists and can be relied upon (e.g. evidence of the rent arrears outstanding), along with personal information about yourself and the tenant.

If everything is in order, the court will issue the claim, returning the sealed forms for you to serve on the tenant or confirming it has served the tenant for you. The next steps will vary depending on the course of action the tenant chooses. They may acknowledge service, raise a defence to the claim or do nothing. The matter will be listed for a hearing in front of a court judge. On the hearing date the case will be heard in front of a judge, who may order possession of the property, make directions for steps to be taken by you and the tenant before a subsequent hearing takes place, or it may dismiss the claim if not all of the paperwork is in order.

If you are successful at a hearing, an order for possession will be made. If you are unsuccessful in obtaining a possession order, the tenant may continue to remain in the property until they move out on their own accord and surrender the property back to you, you can negotiate bringing the tenancy to an end by agreement, or a possession order is later obtained from the court.

Order for possession by the Courts:

After an order for possession is made by the Courts, the tenant is legally required to leave the property on the date specified. If they fail to leave, you must instruct bailiffs to act on your behalf to remove the tenant from the property, otherwise you could be at risk of unlawfully evicting the tenant.

Advice

Seeking advice from a law firm experienced in landlord and tenant disputes is highly recommended, to assist in determining the correct form of notice is prepared and served on your tenant(s), which can then be relied upon if the tenant doesn’t move out and court proceedings become necessary. There is no guarantee that a tenant will move out on receiving a notice asking them to, but by ensuring your paperwork is in order, you are likely to stand the best chance at obtaining a possession order and being able to recover your property even if the help of bailiffs are later required.

Get in touch today if you are experiencing landlord and tenant issues, to see how we can help.

Work Life Balance: How Employers can Support Employees

Work-life balance is a concept that holds different meanings for different individuals. While some associate it with working fewer hours, others believe flexibility in working hours is key. However, the common thread is the desire for a balance that allows individuals to excel both professionally and personally. It is crucial for employers to understand the significance of work-life balance and their role in supporting employees to achieve it. In this article, we will explore the legal rights of employees, the duty of care employers have, and strategies to promote work-life balance in the workplace.

Understanding Employees’ Statutory Rights

Employees have certain statutory rights that employers must uphold to ensure a healthy work-life balance. These rights, outlined in the Working Time Regulations 1998, include rest periods, paid holiday entitlement, and limitations on working hours.

Rest Periods

To promote employee well-being, employers must allow their workers the following rest periods:

• 11 hours of uninterrupted rest per day.
• 24 hours of uninterrupted rest per week (or 48 hours per fortnight).
• A rest break of 20 minutes when working more than six hours per day.

It is important to note that there are limited exemptions to these rights, and workers cannot contract out of them.

Paid Holiday Entitlement

Most employees who fall within the legal definition of a worker are entitled to 5.6 weeks (28 days) of paid holiday each year, pro-rated for part-time workers. This ensures that employees have the opportunity to take time off and rejuvenate, contributing to a better work-life balance.

Limitations on Working Hours

To protect the health and safety of workers, employers must ensure that each employee’s average working time, including overtime and work with other employers, does not exceed 48 hours per week. While many employees choose to opt out of this provision, conscientious employers should consider the original intent of the legislation – safeguarding workers’ wellbeing.

By adhering to these statutory rights, employers create an environment that promotes work-life balance and protects the health and safety of their employees.

The Employer’s Duty of Care

Employers have a duty of care towards their employees, extending to their health, safety, and overall wellbeing. This duty includes ensuring that employees are not working excessive hours, as research has linked long working hours and excessive workload to mental health issues such as stress, anxiety, and depression. It is crucial for employers to recognise and address these concerns, as mental health conditions can even be classified as disabilities.

When mental health conditions qualify as disabilities, employers may be required to make reasonable adjustments to support employees, such as reducing their hours or workload. Failure to make these adjustments can result in claims of disability discrimination and constructive dismissal. Employers also face the risk of accidents or further mental health issues arising from excessive working hours.

Ensuring healthy working practices not only helps fulfil legal obligations but also enhances job satisfaction, increases employee productivity, and fosters a positive work environment. By prioritising work-life balance, employers can build loyalty, improve employee retention, and contribute to the overall success of their organisation.

Strategies to Support Work-Life Balance

To support employees in achieving a healthy work-life balance, employers can implement various strategies and practices. Here are some examples:

Regular Communication and Workload Management

Regular communication with employees is essential to ensure they are given an achievable workload and are completing their tasks within a reasonable amount of time. Managers should engage in conversations to understand any additional support employees may require, which may contribute to a better work-life balance.

Monitoring working hours and email flow within teams can also help identify potential issues. Managers should be mindful of the times emails are being sent and have open discussions with their teams about working hours.

Flexible Working Arrangements

Implementing flexible working arrangements can significantly contribute to work-life balance. Employers can consider provisions such as:

• Flexitime: Allowing employees to choose their start and finish times within defined core hours.
• Remote Work: Enabling employees to work from home or other locations to accommodate personal needs.
• Reduced Hours: Offering part-time options or job-sharing arrangements.
• Compressed Work Week: Allowing employees to work longer hours over fewer days.

By providing flexibility, employers empower employees to manage their work and personal responsibilities effectively.

Conclusion

Work-life balance is pivotal for well-being and productivity. Employers, bound by legal and ethical responsibility, must support employees. Upholding statutory rights, fulfilling the duty of care, and implementing balance-promoting strategies create a positive work environment. Prioritising work-life balance benefits individuals and contributes to organisational success.

Barbie goes for the plaid

World-wide exposure for the Barbie movie has seen a rash of pink excitement in unexpected quarters, but one design house that may have hoped to escape such attention is the international Burberry brand, which is facing opposition from Barbie owner Mattel to a trademark registration in the US.

Burberry filed the application for the word ‘BRBY’ to cover a range of leather goods, bags and clothing but Mattel has opposed the application, saying it is too similar to their mark, even though the BRBY trademark was successfully registered in the UK by Burberry last year.

It may seem a surprise, bearing in mind Burberry is best known for its rather staid brown plaid which is a world apart from the dazzling pink favoured by Barbie.  As it says on its website:  ‘The Burberry check was first used to line our raincoats in the 1920s, but it was the 1960s that saw it become the unmistakable Burberry signature we know’.

But the opposition is on the grounds that the word BRBY is similar to Mattel’s registered marks and could damage its reputation, with the biggest similarity being phonetic, as vowel-light BRBY sounds very similar to ‘Barbie’ when spoken.

While Mattel is known for producing toys, specifically the Barbie range, the doll’s extensive wardrobe may be entering the real world, as Margot Robbie did in the film, with claims of a direct overlap in terms of goods and services listed in the opposition to Burberry’s application.

Since it was launched in 1959 there have been many Barbie-branded products, but mainly within the toy sector.  With the launch of this year’s film, the brand is evident in many new directions, from fashion and cosmetics to homeware.

“When big name brands are involved, there’s everything to fight for in such situations,”

said commercial advisor Miss Amy Cusworth  of Rotherham town solicitors Oxley & Coward Solicitors LLP. “Mattel will be looking to leverage the brand as widely as possible on the back of the mega-success of the film, so it’s not surprising to see this push back against Burberry, as the Barbie world is likely to expand dramatically over the coming year.”

[This is not legal advice; it is intended to provide information of general interest about current legal issues].

Garden Alterations and Neighbour Disputes – Resolving Summer Conflicts

As summer arrives, many residents take to their gardens to enjoy the warm weather and make alterations to enhance their outdoor spaces. However, these garden alterations can sometimes lead to disputes between neighbours, causing tension and impacting the enjoyment of the summer season.

From planting trees on boundary lines to a new fence or maybe even a new shed for your new gardening plans, conflicts between neighbours happen, but resolving these conflicts amicably and understanding the legal considerations surrounding garden alterations can help you maintain harmonious neighbourly relationships.

​In this article, we will explore common garden alteration issues, offer guidance on resolving disagreements, and shed light on the legal aspects relevant to property owners.

Common Garden Alteration Issues

Garden alteration issues can arise due to a variety of factors, including changes to garden structures, planting of trees or hedges, installation of fencing, or construction of outbuildings. Concerns may include obstructed views, loss of privacy, noise disturbances, potential damage to property, or impact on natural light.

All of these occurrences can impact you or your neighbour’s enjoyment of their property,so it is important to approach these issues sensitively. Understanding the specific concerns and interests of all parties is crucial when attempting to find mutually agreeable solutions.

Open and Respectful Communication

Resolving neighbour disputes begins with open and respectful communication. Initiating a conversation with your neighbour to discuss concerns and explain your perspective can help alleviate tensions. Listening to their concerns and demonstrating empathy are equally important. A calm and respectful dialogue can often lead to compromises or mutually beneficial solutions that address both parties’ interests.

Mediation and Alternative Dispute Resolution

If direct communication does not yield a resolution, seeking mediation or alternative dispute resolution methods can be effective. Mediation involves a neutral third party facilitating a discussion between the parties to find a mutually acceptable solution. This process encourages constructive dialogue and can help neighbours identify common ground and reach compromises. Alternative dispute resolution mechanisms, such as arbitration or expert determination, may also be considered, depending on the nature and complexity of the dispute.

Understanding Legal Considerations

Garden alterations must comply with local planning regulations and legal requirements. Familiarise yourself with the relevant laws, such as permitted development rights, which dictate the types and sizes of structures that can be built without planning permission. If planning permission is required, ensure that the necessary approvals are obtained to avoid potential legal issues. It is advisable to consult with a law firm specialising in property matters to ensure compliance and mitigate any risks.

Boundary Disputes and Encroachments

Garden alterations can sometimes lead to boundary disputes or encroachments. It is crucial to ascertain the exact boundaries of your property and engage a professional surveyor if necessary. Clear documentation, such as title deeds and land registry records, can provide clarity on boundary lines. If a dispute arises, seek legal advice to understand your rights and options for resolution, which may involve negotiation, mediation, or, in extreme cases, legal action.

Seeking Legal Advice

When neighbour disputes become challenging to resolve or involve complex legal issues, seeking advice from a law firm experienced in property disputes is highly recommended. Property lawyers can provide expert guidance, assess your legal position, and help explore potential solutions. They can also represent your interests in negotiations, mediation, or court proceedings if required, but by taking proactive steps to address disputes, property owners can maintain harmonious relationships with their neighbours and enjoy a peaceful and pleasant summer season.

 Agricultural Tenancy Disputes

Agricultural tenancy disputes can be complex and contentious, requiring a nuanced understanding of the legal framework governing these arrangements. With agriculture playing a vital role in the UK economy, ensuring effective resolution of disputes is crucial for both landlords and tenants. This article explores the key aspects of agricultural tenancy disputes highlighting relevant legislation, common issues, and the mechanisms available for resolving conflicts.

Understanding Agricultural Tenancies in the UK

Agricultural tenancies typically involve the occupation of land for farming or agricultural purposes. Two primary types of agricultural tenancies exist: Agricultural Holdings Act (AHA) tenancies and Farm Business Tenancies (FBTs). Understanding the nature of the tenancy is crucial, as different rules and regulations apply to each.

Agricultural Holdings Act (AHA) Tenancies

AHA tenancies are governed by the legislation. These tenancies are long-term and often passed down through generations. Key features of AHA tenancies include security of tenure and statutory rights for tenants, providing a level of protection and stability. Disputes relating to AHA tenancies often revolve around rent reviews, repairs, succession, and compensation matters.

Security of tenure 

Security of tenure refers to the legal protection granted to tenants, ensuring their right to remain in their rented property for a certain period and providing them with stability and certainty. In the context of agricultural tenancies in the UK, security of tenure is governed by the Agricultural Holdings Act 1986 and the Agricultural Tenancies Act 1995.

​Farm Business Tenancies (FBTs)

FBTs are regulated,  however they offer more flexibility compared to AHA tenancies, as they allow for shorter-term agreements and increased freedom in negotiating terms. Common disputes related to FBTs may involve rent reviews, termination notices, repair obligations, or disagreements over agricultural operations.

Common Disputes and Resolutions

Like every tenancy, disputes can arise, and it is important to ensure you know the best resolution in order to minimise the impact on your money, time and reputation.

Rent Review Disputes

Rent reviews are a frequent cause of contention between landlords and tenants. Parties may disagree on the appropriate rent increase or the method used to determine it. In such cases, professional valuations, arbitration, or Alternative Dispute Resolution (ADR) methods like mediation can help reach a resolution.

Repair and Maintenance Disputes

Disagreements often arise regarding maintenance responsibilities and obligations between the landlord and tenant. Clearly defined terms in the tenancy agreement and adherence to the repairing obligations outlined by law are crucial. Disputes can be resolved through negotiation, professional assessments, or legal action if necessary.

Succession and Assignment Disputes

In AHA tenancies, succession rights are particularly important. Disputes may arise when determining eligible successors or when disagreements occur regarding assignments or subletting of a tenancy. Adhering to the statutory framework and seeking legal advice can help navigate these issues.

Termination and Notices

Terminating an agricultural tenancy requires compliance with specific notice periods and procedures. Disputes may arise if the correct notice is not provided or if disputes arise over the validity of a notice. Understanding the legal requirements and consulting legal experts can help avoid potential disputes.

Resolving Disputes

To resolve agricultural tenancy disputes, various methods are available. Mediation and negotiation provide an opportunity for parties to reach a mutually acceptable agreement with the assistance of a neutral third party. If informal methods fail, formal methods such as arbitration or litigation can be pursued, allowing a court or tribunal to make a legally binding decision.

Agricultural Tenancy Disputes

Agricultural tenancy disputes in the UK can be complex, requiring a comprehensive understanding of the legal framework governing these arrangements. Parties involved in such disputes should familiarise themselves with the specific legislation applicable to their tenancy type and seek professional advice when needed.

By adopting effective communication, exploring alternative dispute resolution methods, and, if necessary, resorting to legal proceedings, landlords and tenants can navigate agricultural tenancy disputes in a fair and efficient manner – and hopefully maintain a working relationship that will benefit them both going forward.

Endometriosis Month – How should employers be supporting workers with endometriosis?

Endometriosis is a chronic and debilitating condition that affects approximately 1 in 10 women in the UK. March is Endometriosis Action Month, which aims to raise awareness of this condition and to promote better support for those living with it.

In this article, we will discuss how UK employers can support workers with endometriosis, and what legal obligations they have to do so.

What is Endometriosis?

Endometriosis is a painful condition where tissue similar to the lining of the uterus grows outside the womb. This tissue can grow on the ovaries, fallopian tubes, bladder, bowel, or other parts of the pelvic area. Endometriosis can cause chronic pain, heavy periods, painful sex, and fertility issues. Other factors include fatigue, nausea, and bowel or bladder problems. As the symptoms of the condition can be severe, they will often impact employment, so it is important employers understand the impact of this condition.

How does Endometriosis affect work?

Endometriosis can have a significant impact on a person’s ability to work. The pain and other symptoms can make it difficult to concentrate, sit or stand for a long time, and perform physically demanding tasks. As a result, women with endometriosis are more likely to take time off work, and they may experience discrimination and stigma in the workplace.

Employers’ legal obligations

Under UK employment law, employers have a duty to make reasonable adjustments to support workers with a disability or long-term health condition. Endometriosis is considered a disability under the Equality Act 2010 if it has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.

Reasonable adjustments employers can make may include:

• flexible working arrangements,
• providing extra breaks or rest periods,
• making adjustments to the work environment,
• additional support.

Employers should also have policies in place to prevent discrimination and harassment in the workplace.

Employers and Endometriosis

Endometriosis can have a significant impact on a person’s ability to work, and it is important that employers provide support to workers with this condition. Employers have a legal duty to make reasonable adjustments and support employees with endometriosis. By offering flexible working arrangements, reasonable adjustments, awareness and training, access to healthcare, and reviewing policies, employers can create an inclusive and supportive workplace for employees with endometriosis.

What to look out for in your New Year gym contract

As the year get underway, deals crop up for gym contracts everywhere. As with any contract, it is good to know what you are agreeing to before signing it, and it can be overwhelming to decide what is the best choice for you when there are so many deals available throughout January.

In this article, we help you know what to look for before signing a contract for a new gym.

Fixed term contracts

You will often receive a better offer from a gym for signing a longer contract, and although this might save you money upfront, it isn’t always the most future-proof option. However, in recent years, more protection has been offered to consumers who face changing circumstances, particularly unforeseen circumstances such as illness or losing their job.

When considering different deals and contracts, always check the minimum term the agreement will last for and if there is a fee or notice period to cancel after this. At times this term may be unfair. Below we look at the legal protections offered to you if they are unfair terms.

Breach of contract

Sometimes the gym facility will be in breach of contract, giving you the grounds to challenge them. For example, if your gym also offers access to a swimming pool, but this is closed, you could seek a reduction in fees.

Breach of contract is individual to each agreement, and the wording can offer the facility protection, which is why it is always important to review the contract before signing it. It is important to know your options if the gym breaches the contract, such as what compensation you are entitled to if any facilities were to close or be unavailable during your contract term. Just as you are liable for failing to meet your obligations, the gym are too.

Unfair terms

The Consumer Rights Act 2015 protects against unfair terms within a contract or an overall unfair contract. Before signing any contract, you should always read it carefully. If you feel there are any terms you don’t understand or contradict what you have been told, then speak with a representative at the gym to get some clarification. It is always important to fully understand a contract before signing it, and the staff should be more than happy to discuss it.

What to look out for in your new contract

Important terms to look out  for and ensure you understand include:

• Contract renewal – Does the contract automatically renew? Will you be charged for this if you don’t cancel in time? Will you be notified before the renewal?
• Length of contract – Is the contract fixed term, e.g. 12 months? Can you cancel the contract at any time, or is there a cancellation fee?
• Cancelling the contract – How do you go about cancelling the contract? Is there a notice period when you are still liable to pay?
• What is included in the contract? Sometimes a gym membership can include classes, access to a pool, sauna or other additional facilities – are these included in your cost or for an additional fee?
• What are the remedies for a breach of contract? If all the facilities are not available to you, are you owed compensation, such as a pause in membership fees?

As with any contract, you must ensure you read it, understand it and also have a copy of the signed contract, whether this is physical or digital. Taking the time to review before you sign and ask questions on anything you are unsure of will help you step into the new year, and your new gym, with confidence.

Returning goods after the festive period – What are the rules?

We all appreciate receiving Christmas gifts, but sometimes they need to be returned. This could be for various reasons, from clothes that don’t fit, or maybe you already own them. It might even be faulty or simply isn’t something you want or need.

This article looks into the rules surrounding returning goods and what rights you have to return or exchange an item.

Goods bought in store

When it comes to returning goods that were bought in-store, legally, there is no protection for you or the buyer to be able to receive the money back or an exchange unless the goods are faulty. But, most shops have a more lenient customer-focused approach to this issue, often offering a refund, credit note or an exchange.

While stores have no legal obligation to return the goods unless they are faulty, it is always worth asking. Return and exchange policies are specific to the company, so you should always check your options based on the particular policy.

Goods bought online

If a gift is purchased online, there are more legal obligations for the seller and protections for the buyer. As a recipient of a gift, this doesn’t necessarily help you, but if you speak with the person who gave you the gift, and it was delivered to them less than 14 days ago, then a return can be made.

Christmas returns policies

As discussed, many shops have their own policy on returns, with around 14 to 30 days being the norm for many high street retailers, such as H&M 28 day return policy or M&S and their 35-day return policy. As with all return policies, this is individual to each business so you should always check.

On top of the longer 30-day return options that are seen all year long, often around Christmas, many online retailers have extended return policies. For M&S, any purchases made from October 31st until Christmas Eve can be returned up until January 31st rather than their typical 35-day window. H&M extends their period into the New Year, with purchases made between the 14th of October to 6th of January, having a cut-off date of the 31st of January. ASOS, Amazon, Argos, Boots, John Lewis and several other retailers also all have an adapted holiday returns policy, giving you typically until the end of January to make your return.

Finding a return policy

Typically, return policies can be found on a company’s website. If you can’t spot a page aimed at return policies, check the FAQs or their customer support page. Many stores will require a receipt or another proof of purchase, making returns difficult for gift recipients if they do not receive the gift receipt.

Often as a goodwill gesture, the person returning the goods will receive an offer of an exchange or a credit note, such as a gift card. Occasionally, you may also be offered a refund, but this is unlikely, especially if you do not have the receipt.

Faulty goods

If the gift you received is faulty, you are more likely to receive a refund. The law offers protection for 30 days from purchase; goods that are found to be faulty can be refunded. When 30 days pass, a replacement or repair should be available. Some stores will extend the refund policy beyond these 30 days, but this is not required by law. If you have received the product as a gift and you have the gift receipt, any extended right to a refund will usually transfer to you.

So can I return unwanted presents?

There is no harm in trying to return a gift if you have a receipt or another form of proof of purchase. If you haven’t received this and still want to return the gift, you will likely need to speak with the person who bought it to get it before making the return.

It is important to remember that a business has no legal obligation to accept a gift back. There is also no obligation to refund the money, so more often than not, it will be an exchange or credit note you receive.

Ultimately, it really depends on the store and the business. The policy can differ from store to store, so you should always check. When possible, you should always get the gift receipt and keep a hold of them too!

Discrimination in education – can you make a claim?

In the UK, pupils and students are protected from being discriminated against by their schools, colleges and universities under the Equality Act 2010, but this doesn’t mean education is free from discrimination. It is important to be able to identify when discrimination is happening and know what to do to stop it. If not, it can have long-term effects on the impacted individual.

What is discrimination in education?

Discrimination in education can happen at various points in an individual’s life; it is when a person is treated unfairly because of who they are. In education, this can be detrimental to an individual, often a child, and can lead to their education being impacted long term, as well as their mental health.

In the UK, discrimination is unfair treatment against someone because of what the Equality Act 2010 outlines as ‘protected characteristics’. This unfair treatment cannot discriminate against someone at any point in their education, including admission, access to education and extra-curricular activities or even exclusions.

Protected characteristics

The Equality Act 2010 outlines nine protected characteristics that cannot be discriminated against, and in education, there is a duty placed on schools, higher and further education institutions not to discriminate based on these set characteristics. The nine protected characteristics outlined in the act are:

• Age
• Disability
• Race
• Sex
• Sexual orientation
• Religion or belief
• Gender reassignment
• Pregnancy and maternity
• Marriage and Civil Partnership

How can you take action against discrimination?

If you decide to take action against discrimination, it is important to know who to take this action against and how to do it. The body that provides you or your child’s education is to who the complaint should be directed to. Depending on the type of school attended, this will be the local authority or the school’s board. Similarly, colleges and universities will likely be run by private bodies rather than the local authority, and it is to that body to which you should complain.

Complaints procedures

Schools, universities and colleges will all have their own complaints procedure that should be accessible to you. Following this procedure should be your first formal step in tackling the discrimination, and if this fails to resolve the issue, you should look to the body in charge of providing the education, such as the local authority.

Court action 

Going to court should always be a last resort, but sometimes it is inevitable. If you have tried to resolve the issue through all other open routes and they have failed to stop the discrimination, then you can claim against the responsible body.

It is important to note that this claim must be brought within six months of the discrimination taking place.

Fire and rehire – why employers need to watch out

Fire and rehire – why employers need to watch out

For many years organisations have been using dismissal and re-engagement, often referred to as ‘fire and rehire’, as a method available to make a contractual change between the employer and employees. However, in February 2022, the High Court issued an injunction against Tesco, preventing them from operating this way.

The Tesco case – what happened?

In 2007, Tesco made operational changes. They relocated warehouses and staff working in the warehouses, with staff retaining pay. Tesco assured the employees that the retained pay would remain and could not be removed – it was to be a permanent clause within their contracts.

However, long term, Tesco did not view this as sustainable, and in 2021, employees who had retained pay featured in their contracts were offered a monetary incentive to encourage them to ditch the retained pay clause. Although this was offered to employees as optional, they were also all informed that contracts were going to be terminated if they did not agree. Employees who chose not to take the incentive were to have their contracts terminated by Tesco but were to receive an offer of re-engagement. Ultimately, Tesco sought to fire and rehire in order to remove the retained pay from the employees’ contracts.

In February, the High Court issued an injunction against Tesco to prevent this from happening, but now The Court of Appeal has overturned this decision, allowing Tesco to go ahead with its plan to fire and rehire.

What does this mean for businesses?

When the High Court offered its judgment in February, there was a lot of worry about what this would mean for businesses as the hire and rehire route was effectively outlawed. However, The Court of Appeal now going back on this view means that employers can fire and rehire employees without worrying to the same extent about legal repercussions, but this does not mean it should be a frequently used method.

What are the risks of fire and rehire?

Employees have a growing awareness of their rights, and although employers can utilise a fire and rehire process, it is unlikely to make them popular with their own employees or the general public. Now the precedent has been set, more claims can be brought against employers using this system, so it is always important to consider if the risks of litigation and bad publicity will be less than the benefits of fire and rehire will provide.

Check the ground rules to avoid boundary disputes

Spring, warm weather and longer days sees a surge in interest in garden works each year, and where householders improve and replace, boundary disputes are sure to follow…

One recent long-running case saw an Essex couple fighting over six inches of disputed land ownership for eleven years, with costs predicted to be as high as £60,000.  The couple, Philip and Denise New, say they have had to remortgage their home to cover the costs after losing their case.

The argument started after they replaced rotten fence panels: they say they used the original cement posts that had been there for 50 years, but their neighbours said the fence was in the wrong place and that the News were trespassing on their land.

Mediators and land professionals were called in, but the neighbours were unable to reach any agreement over the disputed land, with the case finally reaching the High Court.

Property law expert  Miss Amy Cusworth  of Rotherham town solicitors Oxley & Coward Solicitors LLP commented:  “This was an extreme example, but boundary disputes have a tendency to inflame neighbour relationships.

“The best approach is to try and avoid arguments arising in the first place, by having a quiet chat with neighbours before you do the work.  If that highlights a difference of opinion and you can’t resolve things, then staying civil is important.  You still have to live next door to each other and even if you think a house move may be a solution, remember you have to declare any disputes when you come to sell a property these days.”

Boundary problems often arise because nobody knows who owns and is responsible for a fence or the location may not be clear from Land Registry records.  While modern housing will clearly state who owns which boundary, or whether it is a party fence, it is not always clear with older properties.  Locating original title deeds or checking with the local authority may help to recover old documents but if no documentary evidence is available, then more work will be needed.

One option is to apply to the Land Registry for what is known as a ‘determined boundary’, obtaining an expert’s report to make your case and submitting with a surveyor’s drawing of the proposed boundary.  Approval is not a guaranteed solution, as the neighbour must still agree with the determined boundary; if they don’t then it would mean going to a tribunal.

Otherwise, an offer of payment for any area of land under dispute, in return for setting an agreed boundary may be a solution.

Another possibility where there is uncertainty over the boundary line would be to fence the area concerned, then after ten years an application for formal ownership can be made, claiming ‘adverse possession’.  This may be an option where the adjoining landowner is not known or other situations where no immediate neighbour is involved and actively disputing the boundary.

Establishing where the boundary is and who is responsible for it does not place any requirement on the owner to replace a fence, so if you are the one determined on the upgrade, it may be worth considering offering to pay for it.  There is no reason why not, even if you are not the one who is responsible, but you will still need to get agreement from your neighbour first. Discussing what you have in mind also gives an opportunity to agree who is responsible for future maintenance.

She added: “If you really don’t feel able to have an initial conversation, or if you’ve already landed yourself in the middle of a red-hot boundary dispute, then that’s the time to call in a professional to act as intermediary with your neighbour, rather than pressing on and raising the temperature further.  Then, if you reach agreement, you may have to declare the dispute, but you can say it was settled”

[This is not legal advice; it is intended to provide information of general interest about current legal issues.]

Rights of way: Using the UK countryside responsibly – Solicitors Rotherham

Rights of way: Using the UK countryside responsibly – Solicitors Rotherham

In England and Wales, public rights of way give you permission to walk, ride, cycle and drive in public rights of way in the countryside. The Countryside Code also provides rules about ensuring rural areas are safe and enjoyable for visitors and that visitors to the countryside do not infringe the rights of those who live and work in rural areas. In this article, we provide a brief guide to enjoying the countryside responsibly.

Are there restrictions on which parts of the countryside you can use?

If you are considering visiting the countryside, you should check which areas have public rights of way. Definitive Maps and Statements are legal records of public rights of way and will set out which areas are open to the public. You can also check the local authority’s office or website.

The rules are different in Scotland, where ‘right to roam’ rules mean that everyone has the right to enjoy almost all areas of land and inland water, so long as they abide by the Scottish Outdoor Access Code.

The Countryside Code

The Countryside Code [LINK to https://www.gov.uk/government/publications/the-countryside-code] is an important guide for anyone looking to make use of the countryside this spring. There are four key principles:

Respect everyone

You must be considerate to others using the area. Make sure you leave property as you find it, and you are mindful of the safety of others. For example, close gates after you, don’t block access when parking, keep to marked paths and follow any local signage.

Protect the environment

Generally, you should leave no trace of your visit to minimise the impact on the environment. Make sure to take any rubbish with you when you leave, do not light any fires and only have a barbeque in designated areas. Litter is not only dangerous for wildlife, but it is also a criminal offence to litter.

While there is no doubt your dog will love exploring out in the country, it is essential that you keep them in sight and under control – make sure you clean up after them too. Dogs can pose a danger to livestock but may also provoke livestock into chasing you, which can be very dangerous. Give livestock plenty of space and do not disturb them.

Enjoy the outdoors responsibly

You need to keep yourself safe when exploring the great outdoors. Check weather conditions and your route. Make plans in advance to ensure you know what to expect. Remember that some areas may be restricted even though they appear safe. Some areas of land are designed to protect wildlife and should not be disturbed.

Rights of way: Using the UK countryside responsibly – Solicitors Rotherham

World Consumer Rights Day: Buy now, pay later and the law – Solicitors Rotherham

World Consumer Rights Day: Buy now, pay later and the law – Solicitors Rotherham

World Consumer Rights Day will be on 15th March in 2022, with the theme of ‘Fairer Digital Finance’. This article looks at one of the most popular consumer credit schemes today – buy-now-pay-later.

Buy-now-pay-later (BNPL) products have rapidly gained traction with consumers, with many of the world’s most popular online retailers partnering with providers such as Clearpay, Klarna, Laybuy and Openpay to give consumers the option to pay in instalments.

The volume of online transactions tripled during the pandemic, increasing uptake of BNPL schemes to around £2.7billion in 2020. However, these agreements are not currently regulated by The Financial Conduct Authority (FCA), and there is concern that agreements may be harmful to consumers.

Do consumers have difficulty understanding the terms of BNPL agreements?

Consumer rights champion Which? has called for stronger protection [LINK to https://www.computerweekly.com/news/252511676/Which-raises-concerns-over-buy-now-pay-later-schemes] for consumers who chose to use  BNPL products. Which? interviewed several BNPL users, which revealed that many did not understand the risks and consequences of using BNPL.  According to Which?:

“Many of the BNPL users interviewed by Which? did not think of BNPL schemes as a form of credit, meaning they could unwittingly be exposing themselves to serious risks of missing repayments, such as late fees, marked credit reports or referral to a debt collector,”

Regulating BNPL

The UK Government has plans to regulate BNPL providers and make changes to the law. The Financial Conduct Authority (FCA) has recently used its influential power to work with the four biggest BNPL providers. As a result, the FCA has secured changes to the contract terms that consumers must agree to when selecting ‘pay later’.

The BNPL providers have agreed to make the terms of the BNPL offering much clearer, particularly around matters such as contract cancellations. They have also committed to making terms and concepts easier to understand.

Some customers may be eligible for refunds where they have been unfairly charged. Laybuy, Clearpay and Openpay have agreed to change their late payment fee terms, and will also voluntarily refund customers in certain circumstances.

Executive director of consumers and competition at the FCA, Sheldon Mills, said:

“We do not yet have powers to regulate these firms, but we do have powers to review the terms and conditions of consumer contracts for fairness, and have acted proactively to ensure that the BNPL industry adopts high standards in terms and conditions.”

World Consumer Rights Day: Buy now, pay later and the law – Solicitors Rotherham

Back to work means business must keep the workplace Covid-safe

The Government’s latest lifting of Covid-related restrictions, allowing business to return to the workplace, should mean worker welfare is a top priority according to health and safety experts.

Ensuring workers and customers are protected from the physical risk of infection and the potential impact of the pandemic on mental health is essential if companies are to avoid damaging investigations and potential prosecutions.

The latest annual report of the Health and Safety Executive (HSE), the body responsible for enforcing responsibilities, shows that 93,000 cases of Covid-19 in 2020/21 were attributed to exposure to the virus while at work.

Mental wellbeing is high on the agenda according to the HSE, with stress, depression and anxiety now constituting more than half of all new cases of work-related ill health. A total of 822,000 employees were reported to be suffering from work-related stress, depression or anxiety in 2020/21, with the HSE identifying the coronavirus pandemic as a major contributory factor.

So far, few prosecutions have been brought against employers, but the HSE is undertaking spot checks and issuing enforcement notices. Breach of an enforcement notice is grounds for prosecution, and the message is clear: employers need to keep on top of the latest guidance and legislation.

Under the Health and Safety at Work Act 1974 employers must take steps to protect employees, whether in the workplace or acting offsite in a work capacity.  And all employers who have five or more in their workforce must have a written health and safety policy available to employees.

Said Amy Cusworth, company expert with Rotherham solicitors Oxley & Coward Solicitors LLP : “These are statutory duties which must be dealt with in all circumstances, but they are certainly more challenging during the pandemic, as we are dealing with a constantly changing situation.   Demonstrating health and safety is a priority by regular communication with staff is good practice, as is keeping policies up to date and everyone aware of their responsibilities.”

The Health and Safety Executive has a range of information for employers on how to make the workplace safe and protect staff during the pandemic, and offers a Talking toolkit as a resource for employers to handle work-related stress.

Oxley & Coward Solicitors – Back to work means business must keep the workplace Covid-safe – BR Chamber

Renting and repairs: My landlord won’t fix the heating, what can I do?

If you are renting your home, it is your landlord’s responsibility to provide heating and hot water. When the heating or boiler fails through no fault of your own, your landlord must repair or replace the boiler or other equipment. Of course, how long this might take or whether the landlord is forthcoming in doing so is a different story. This article looks at the landlord’s obligations to provide heating and hot water and the steps tenants may take where their landlord fails in their obligations.

Does my landlord have to fix the heating?

Under the law, your landlord must provide you with water, gas, electricity and adequate sanitation facilities (toilets). You are also entitled to equipment for heating each occupied room, or central heating and a boiler for hot water.

There are minimum heating standards for each room, which is at least 18°C in bedrooms, and 21°C in living rooms where the outside temperature is -1°C. It is not acceptable to leave tenants without heating for more than a few days without the landlord taking steps to resolve the problem.

Under the Landlord and Tenant Act (1985), your landlord is responsible for any heating repairs, and replacements set out in the act. This cannot be set aside by any other document – including a tenancy agreement.

What should I do if the heating in my rented property is broken?

In the first instance, you should contact your landlord to let them know about the problem via your usual method of communication with them.

You should also keep evidence of your communications and the repair problem – including photos or videos.

My landlord has not responded/taken action. What should I do?

If your landlord has not replied to you after a few days or taken any action to resolve the repair problem, you should chase them up. We would recommend following up with an email or letter so you can set out the issue in full and so that you have a clear record of what has been said. In the letter or email, you should:

• Remind them that they have a responsibility to make repairs
• Set out times when you are available for the repairs to be carried out
• Tell them what action you would like them to take and the standard of repair that would be acceptable to you
• Provide them with a reasonable deadline to respond

Contact the council

If your landlord refuses to make repairs or does not respond to you after several attempts at contact, you should report them to your local council. Each local council has a private renting team, and you should provide them with evidence such as emails, letters or photos. The environmental health team may then arrange an inspection of your home and have the power to order your landlord to carry out repairs.

Renting and repairs: My landlord won’t fix the heating, what can I do? – Solicitors Rotherham 

Christmas miracle undermines confidence

Christmas miracle undermines confidence – Solicitors Rotherham

Privacy law protects intellectual property as well as celebrity secrets and royal correspondence

A dispute which reached the High Court has highlighted the importance of maintaining commercial confidentiality to avoid sharing intellectual property between competitors.

After being awarded a contract as the exclusive designers of a cable laying vessel, naval architect Salt Ships found itself taken off the project and its designs shared with the replacement designer, who had pitched to complete the work at a lower price.

Salt Ships pointed to the speed at which competitor Vard had supposedly been able to develop the alternative design for purchaser Prysmian, describing it as “the Christmas miracle” as it was completed in less than two weeks, including a Christmas and New Year period.

The Court agreed that Prysmian had acted in breach of confidence when they encouraged Vard to make use of the design work prepared by Salt Ships.

The law relating to breach of confidence is based on the principle that someone should not take unfair advantage of information obtained or given in confidence. It allows individuals or businesses to take civil action to protect private or commercially sensitive information, or governments to protect security interests.

“Breach of confidence often hits the headlines when a celebrity’s phone is hacked, and their personal details or images are leaked to the media or posted online. A high-profile example is the action by the Duchess of Sussex against the press for publishing a private letter she had written to her father in the run-up to her marriage to Prince Harry.

“But it can also be used to protect intellectual property, as in this case,” explained corporate expert Miss Amy Cusworth of Rotherham solicitors Oxley & Coward LLP.

In the ruling, the judge pointed to the considerable cost saving made by Prysmian in transferring the contract, while keeping the benefit of the original design work. He also took into account that Prysmian had obtained an indemnity from Vard in the event of a claim by Salt Ships for infringement of intellectual property rights. Calling the company’s behaviour ‘high handed’, the judge said there was a case for punitive damages when the claim is heard.

Miss Cusworth added: “It is unusual to see damages awarded for more than financial compensation in the English courts, but exemplary damages are likely where wrongful conduct can be seen to generate more profit than any compensation would involve.

“This case demonstrates why purchasers should avoid the temptation to make use of commercially sensitive information and intellectual property belonging to a former supplier, or where it has been developed and shared as part of a tendering process. It’s not just the potential cost of litigation, but also the reputational damage.”

Salt Ship Design AS v Prysmian Powerlink SRL [2021] EWHC 2633 (Comm) (30 September 2021)

Duchess of Sussex v Associated (2021) EWCH 273 (Ch)

Christmas miracle undermines confidence – Solicitors Rotherham

A time for giving?

A time for giving? Solicitors Rotherham

Companies reminded of need for safeguards on corporate gifting

Companies and customers are set to miss another year of Christmas parties and corporate entertaining, following the discovery of the Omicron coronavirus variant. But with the expectation that corporate gifting will take its place, businesses need to check they are on top of the rules.

It’s ten years since the Bribery Act was introduced, which sets out how corporate hospitality and gifting must be reasonable and proportionate. And for companies who get it wrong, the costs can be considerable.

Since the introduction of the Act, the Serious Fraud Office has shown an increasingly tough attitude towards tackling corruption and even the smallest companies can feel the force of the Bribery Act if they don’t have the right checks in place.

In the biggest penalty yet seen for a conviction under the legislation, Petrofac has been ordered to pay £77 million in penalties after admitting seven charges of failing to prevent bribery in the Middle East, which saw executives paying £32 million in bribes to help the company secure more than £2.6 billion of oil and gas contracts.

Other companies have paid even larger sums, having reached deferred prosecution agreements with the Serious Fraud Office to avoid conviction.

The legislation sets out how bribery is defined, as giving, or offering a person a financial or other advantage with the intention of inducing them to act improperly or asking or receiving an inducement in return for acting improperly.   As well as the individual offences, it makes it an offence to fail to prevent bribery, which means a commercial organisation could find itself guilty of an offence if a connected person – such as an employee or an agent – commits an individual bribery offence.

To avoid prosecution the organisation must be able to show it did not know it was taking place and be able to demonstrate adequate procedures are in place to guard against bribery, including due diligence on individuals.

Said Miss Amy Cusworth, Corporate Expert with Oxley & Coward Solicitors LLP – Solicitors Rotherham: “Even where no contracts are up for grabs in the immediate future, lavish gifting could be interpreted as undue influence. It’s safer to offer something that has a clear business development opportunity for the company – such as a company-branded gift – whereas a case of champagne may not pass the test.”

Miss Cusworth added: “It’s not just about what is gifted, it is also a good idea to remind staff of policies to keep them aware of the importance of protecting the company against claims of undue influence. One way of reinforcing this is by asking them to record anything they receive, whatever its value, and having a threshold for both giving and receiving is a sensible approach.”

A time for giving? Solicitors Rotherham

Property owners and their responsibilities

Getting to the root of the problem in boundary disputes

Householders spending more time at home and in their gardens during the Covid-19 pandemic is fuelling a rise in boundary disputes as infrequent niggles have translated into nagging complaints, with overhanging branches, encroaching tree roots and towering hedges proving to be a major source of disagreement.  

But when it comes to overhanging branches, and fruit falling into a neighbour’s garden, there’s not always a clear-cut answer, even where it poses a health threat.

Various protections may impact the right to trim back overhanging branches from a neighbour’s trees, even when they extend over a boundary. And where trees are in a conservation area, or are covered by a tree preservation order, known as a TPO, even the owner will require council consent to prune or fell them.

In one case being heard by the courts, a Surrey homeowner is claiming that an apple tree has made her a ‘prisoner in her own home’, arguing that when the fruit falls and decays it attracts wasps, and she is allergic to their sting. Her actions to cut back the tree without agreement have given rise to a long and bitter dispute, with legal costs now standing at £200,000 amid claims of trespass, harassment and obstruction.

In another, in Norfolk, a mother has been unable to convince the local authority to let her cut back an overhanging walnut tree, despite her daughter having a severe nut allergy.   For mother Chantel Beck, the walnut tree poses the threat of anaphylactic shock for her six-year-old daughter Beau, and while she was granted permission to trim the tree back in 2018, when this lapsed and she had not taken action, her re-application was unsuccessful.  The council said that the works could affect the health of the tree, and that they were considering protecting it with a TPO.

As well as overhanging branches, tree roots may also pose a problem for neighbour relations as trees which are allowed to grow unchecked, or too close to buildings, can damage foundations and cause subsidence.

Hedges can be equally divisive, particularly when it comes to the notoriously fast-growing leylandii. If a hedge, or a row of trees, grows more than 2m tall and affects enjoyment of a property, the owner can be asked to trim it back.

When a problem has been identified, such as hedge height, overhanging branches or problem roots, and a neighbour refuses to act, the next step is usually to ask the local authority to intervene, and legal action after that. If tree roots are threatening foundations, then the tree owner could be liable to pay for any remedial works, but only once they have been put on notice to act.

Amy Cusworth of Oxley & Coward Solicitors LLP commented: “It’s inevitable that more time spent at home will have seen more people looking at their environment and picking up on things which may have passed unnoticed before, but the best approach to boundary disputes is a restrained discussion to discuss the problem and if that doesn’t resolve the matter consider mediation before rushing to the courts.  It’s all too easy to let these disputes escalate into a personal battle, which can have more impact on enjoyment of your property than the original problem.  You still have to live alongside that neighbour, and nowadays you have to declare any dispute when you come to sell a property.”

They added: “Even though you are allowed to trim branches or roots up to the property boundary, it’s still best to have a chat first. And if you live in a conservation area, or where trees are protected by preservation orders, then you need to speak to the council before you start pruning. If you don’t, you could find yourself facing legal action for damage to property, even if there is an obvious nuisance. If you don’t feel able to have that conversation, then call in a professional to act as an intermediary with your neighbour, or with the local authority.”

Social media and the law: 6 things you need to know

The world of social media can often seem like the wild west of the internet. Everyone has simple access to an audience and can share anything they wish. In a matter of minutes, a post can go viral, spreading a message or causing damage to a brand’s reputation. While the dos and don’ts of social media are far too extensive to cover in a blog post, in this quick guide, we point you in the direction of some things you should be aware of.

Offensive posts

Contrary to popular belief, you cannot simply post whatever you wish on social media. Many social media platforms have built-in monitoring algorithms to prevent offensive posts. When you sign up to a platform, you are agreeing to abide by their ‘community rules’. If you break these rules, you could have your account suspended and, in some cases, further action might be taken.

Can I be prosecuted for an offensive post?

The Crown Prosecution Service (CPS) has outlined that in order to face charges for a social media post, the post must amount to a credible threat of violence, be a targeted campaign of harassment against an individual or breach a court order.

Can my employer dismiss me over a social media post?

Prosecution is not the only concern. Employees in the UK can face disciplinary action or even be dismissed from their job if they post inappropriate content on social media. Many employers have a social media policy that clearly sets out employees’ expectations on social media. Generally, any comments that damage the brand’s reputation, including comments about customers or the business, could be grounds for dismissal.

Reviews

Reviews can help us decide where we want to go and the businesses we choose to buy from, but leaving a false review could see you end up in court. Negative reviews can be incredibly damaging for businesses, and if the statements in such a review turn out to be false, the business could take legal action against the person who posted the review.

Ads, gifts and sponsorship

Ever noticed some influencer posts that include #AD? Declaring ads is the law, but it applies to more than you might think. If you have received a product, service, meal or trip for free, you must declare it as an ‘AD’ in your social media post – even if you are not an influencer. You can find out more information here.

Sharing private images without consent

It is a criminal offence to share, retweet, forward or otherwise pass on a private sexual photograph or film without consent. The UK Government has created a comprehensive campaign to make the public aware of this offence, and you can find out more information here.

Social Media Copy

As part of Social Media Day on the 30^th of June, we share some laws you might not be aware of when sharing on social media.

Unsure of whether you can share something online? Read our quick guide to some things you need to know.

Links:

https://www.asa.org.uk/advice-online/recognising-ads-social-media.html

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/405286/revenge-porn-factsheet.pdf

Understanding whether the force may be with you

‘May the force be with you’ is usually the concern of Jedi knights heading to battle in Star Wars, rather than something that company directors look for. But for those companies looking to claim that the coronavirus pandemic has given rise to circumstances beyond their control in delivering on contracts, it is a ‘force’ of a different sort that is concentrating minds.

In one of the few cases to consider the impact of the pandemic on company contracts to date, the High Court has ruled that a force majeure event took place when a Drain Doctor franchisee needed to self-isolate due to the risk of Covid-19 on his vulnerable child.

A force majeure clause in a contract can excuse one or both parties from their obligations – without being liable for any failure to perform – if acts, events or circumstances occur which are beyond their control, such as a natural disaster or a state of war.

In the case of Dwyer (UK) Franchising Ltd v Fredbar Ltd & Bartlett, the franchise agreement contained a clause for suspension during any period that either party was prevented or hindered from complying with their obligations by any cause designated as force majeure by the franchisor.

When Fredbar asked to invoke the clause as work levels were reduced and he needed to self-isolate, Dwyer (UK) argued that plumbing services could still be provided during lockdown and a drop in demand was insufficient grounds for force majeure. When the franchisee terminated the agreement, arguing Dwyer (UK) had failed to meet its obligations, the company retaliated by initiating legal action, claiming damages.

In assessing the case, the High Court drew on what is known as the Braganza duty, from the 2015 case of Braganaza v BP Shipping, which saw the Supreme Court rule that a unilateral power to call a force majeure event must be exercised ‘honestly, in good faith and genuinely’.

In this case, the judge ruled that Dwyer (UK) were in breach of the Braganza duty in refusing to agree force majeure, as they had failed to consider all the relevant factors. These extended beyond the general situation regarding plumbing services during the pandemic and included the importance of family welfare and the franchisee’s need to isolate to protect his son, who was in a vulnerable category for Covid purposes.

“The ruling reflects the specific facts of this case and the wording of the force majeure clause. But while the wording of Drain Doctor’s clause was not typical, it is an interesting outcome for anyone currently pursuing action on these grounds in relation to the pandemic.  However, each case will hang on individual circumstances and the wording of the particular contract concerned,” explained Amy Cusworth, contracts expert with Oxley & Coward Solicitors LLP, Rotherham.

She added: “The past year has taken us all into unchartered territory, demonstrating how the unexpected can, and does, happen. This is why it is so important to have well drafted contracts, as having clear terms in place can make all the difference.  And because the concept of force majeure is derived from civil law, and not fully recognised under English common law, it should always be fully and clearly defined in a contract.”

Dwyer (UK) Franchising Ltd v Fredbar Ltd & Bartlett [2021] EWHC 1218 (Ch).

Braganza v BP Shipping Ltd [2015] UKSC 17; [2015] 1 WLR 1661