Separation is for most people a very difficult time. Quite apart from the emotional aspects, including very often feelings of failure and loss, there are likely to be many practical matters which need to be sorted out. These may include the arrangements for children; possibly dealing with a house sale and move; considering whether one party is going to have to provide financial support, and/or sorting out other financial arrangements in a fair way.

There are other issues, which are often overlooked until the unexpected happens. One example is whether it is necessary to take steps to separate the parties’ digital lives. On separation, it is invariably more appropriate and often essential, that things are rearranged so that each party is in sole control of their own digital lives.

Here are some important considerations about protecting your digital life on separation.

Accounts and passwords

Like many couples, you may well have shared with your former partner access to a number of websites and platforms through the use of a common password. It may be that some of these are sites which you use regularly including, for example, online banking and savings accounts. Others could include access to social media and leisure activity sites, such as Netflix and Facebook etc.

The wise course, as soon as a separation is likely, is to change the user names on such sites and also the passwords. This is particularly important in the case of accounts where a liability might be incurred or one from which money could be removed without agreement. It may well be that this step will involve closing down use of a particular account and creating a new account in your sole name.

Make a list of all the passwords you could possibly have shared and create new ones for each one. It may sound obvious, but make sure that your new passwords are not those that your former partner might be able to crack.

As an extra precaution, access to any gadgets which are yours alone should be restricted by a fresh password which only you know.

Shared gadgets

Couples often share technology. This could be, for example, a shared tablet, kept perhaps in the kitchen for quick use by each of you for reference purposes or to pay bills or to access bank accounts. That gadget could well contain all the passwords each of you use, a history of all your browsing, or even have images on it you may not want to be seen by a third party.

Before wiping details from a shared gadget, it would be sensible to back up ‘your’ information on a separate device. Once any personal information has been backed up, it is usually best to reinstate factory settings on the former shared gadget.

Follow the same steps with any computers, phones, or other electronic items with the capability of saving data like banking info, your tax returns, instant messages, or anything you don’t want your former partner taking with them or even seeing.

Clean up your social media

You may have shared a Facebook account or other social media site where you kept mutual friends, photos, or conversations. Perhaps you both made comments on Twitter and jointly posted updates the appropriateness now seems dated. This is the time to close such accounts and, if you wish to do so, create your own private profile. This advice applies even if you are on continuing good terms with your former partner.

A very important rule to follow is to be extremely cautious about making posts on social media after a separation. Sometimes, former partners or others can misconstrue what has been said and this can create real difficulties.  Even very high levels of privacy can be breached, deliberately or by misunderstanding.

Make sure all your privacy settings are up to date and consider whether there are any potentially problematic posts you may have made in the past which need to be deleted.

These relatively simple steps will reduce or even remove any potential damage your former partner could do in the future. Such damage could be financial or even reputational i.e. someone making derogatory and/or untrue comments. Thinking about these issue early on will mean that you have one less problem to worry about.

If you or anyone you know, are affected by the issues raised above and would like more information or some preliminary, confidential advice, please contact Pippa Allsop or one of our other experienced experts in our family team.

IR35 – What is it and where does it apply?

IR35 is tax legislation aimed at preventing avoidance or reduction of tax and National Insurance Contributions (NICS) by workers and those hiring them through the use of an intermediary between the end user (‘the client’) and the worker. Workers who, if no intermediary was used, would have employee status, are “deemed employees” by HMRC and have to pay income tax and NICS as if they were employed by the client. This work is termed “off payroll”.

The scheme has been in force since April 2000 and has been heavily criticised throughout its time, for unfairly targeting certain organisations and for its ambiguity. As such, the legislation has been updated as of 6 April 2021 for private sector clients. This has already been implemented in the public sector (as of April 2017).

What is an intermediary?

An intermediary is any person or organisation from which a worker receives (or is entitled to receive) a payment or benefit which is not chargeable to tax as employment income. In many cases, the intermediary is a limited company which will be referred to as a “personal services company”.

In the case of a company, in order to be classed as an intermediary, it must not be an associated company of the client (i.e. under the same control or one controlled by the other). The worker must have a material interest in the intermediary company; or the payment or benefit received by the worker from the intermediary can “reasonably be taken to represent” payment for the services provided by the worker to the client.

Employment Status

Determining a worker’s deemed employment status is not straightforward, as evidenced by the vast numbers of cases such as Uber (considered in our article “Supreme Court Ruling – Uber drivers are workers“) heard in the Tribunals and higher courts. To determine an individual’s employment status, it is necessary to ascertain both the terms of the actual contractual arrangements between the parties and the actual working arrangements in practice. In other words, it is not enough to go by what is written in a statement of terms or contract of employment; rather, the parties must look at the true nature of the relationship in practice. Where intermediaries are used, the employment status of an individual can be determined by assessing whether or not the individual would be an employee, but for the existence of the intermediary.

In arrangements involving a client and an intermediary there will be two key contracts, the first one between the intermediary and the client and a second one between the intermediary and the worker.

In arrangements which involve an agency providing workers to the client, there may be three contracts. The first between the client and the agency, the second between the agency and the intermediary and the third between the intermediary and the worker. In order to establish the correct employment status, all of these will have to be subsumed into one “hypothetical” contract.

HMRC has published guidance on how to “check employment status for tax” (CEST) and has a tool which can be used to establish employment status on their website. This can be relied upon as evidence for an individual’s status for tax and NICs purposes, if the status is ever questioned by the worker or client. However, this will only be the case where the questions are answered in a way which accurately reflects the terms and conditions under which the individual provides their services to the client.

What were the previous rules?

Prior to 6 April 2021 in the private sector and April 2017 in the public sector, it was the intermediary’s responsibility to decide on a worker’s employment status for each contract they held.

What are the rules as of 6 April 2021?

The new rules mean that the responsibility for determining the status of the worker has shifted from the intermediary to the end client. However, this change only applies to medium and large private sector clients. Where the services are provided to a small client, it is the intermediary who remains responsible for deciding a worker’s employment status and whether the rules apply.

The off-payroll working rules will now apply if each of the following tests are met:

• The client is not a small entity;
  • An entity qualifies as small if one of the following is met:
    • The company’s first financial year is not relevant to the tax year; or
    • The ‘small companies regime’ applies to the company for its last financial year by satisfying two of the following:
      • it has a turnover of less than £10.2million;
      • it has a balance sheet total of less than £5.1 million; and
      • has no more than 50 employees
• The entity has a UK connection;
  • An entity has a UK connection for the tax year where it is resident or has a permanent establishment in the UK.
• The agency legislation does not apply, and the worker is not a visiting performer;
  • A visiting performer is an entertainer, sportsman or sportswoman (“a performer”) who is non-UK resident for a tax year and performs a relevant activity in the United Kingdom in the tax year.
• The worker is providing services to the client and not to an outsourced service provider
  • An outsourced service provider is where a customer contracts with a separate entity for the supply of an outsourced service, rather than the supply of a worker. And;
• The worker is subject to UK tax or NICs.

What are an end-user’s new obligations?

Businesses will need to review their current workforce and identify any individuals who are supplying services through their own limited company or another form of intermediary. It will then be important to put processes into place to identify future individuals working in this way. If a business identifies relevant individuals or agencies that the business engages with, it will be necessary to determine whether or not the off-payroll working arrangements apply in these circumstances.

If off-payroll applies, then the relevant parties will need to be informed of this by using a Status Determination Statement (SDS) as explained below. It will also be necessary to agree with the agency who will need to operate PAYE and the correct income tax and NICs contributions that need to be made.

Finally, businesses should ensure that they have a designated individual (or team) to take responsibility for understanding the regime and ensuring that it is correctly and effectively implemented. Records should be kept of status determinations, along with the reasons for them and any applied HMRC guidance. A regular review should be timetabled to ensure that all records are up-to-date.

What is a Status Determination Statement?

An SDS is a statement from the client declaring a worker’s deemed employment status following an IR35 assessment. The statement must also include reasons for reaching the conclusion on the employment status.

The SDS must be shared with the worker and the intermediary, agency or any other organisation the client contracts with. This is necessary, whether the off-payroll working rules apply or not.

New Guidance

On 3 March 2021, HMRC published changes to its off-payroll working rules guidance. Most notably, the changes include:

• Confirmation that if a worker has no interest in a company, the company will not be a relevant intermediary.
• Confirmation that a client’s status determination statement (SDS) can be provided through an online portal and expanded guidance on when a new SDS should be provided. The revised guidance confirms that clients retain their obligations even if they subcontract the tasks of determining the worker’s status or producing the SDS.
• Guidance on the new targeted anti-avoidance rule (TAAR) announced as part of the Spring 2021 Budget.

The revised guidance also provides information on correcting payroll inaccuracies and confirms that deemed employers cannot recover employer NICs from the amounts treated as employment income. Further, it clarifies that clients can stand by their SDS if disputes are instigated without any reason or new information.

What do employers need to do immediately?

The Government has said that businesses will “not have to pay penalties for inaccuracies in the first 12 months relating to the off-payroll working rules, regardless of when the inaccuracies are identified, unless there’s evidence of deliberate non-compliance”. While this gives employers a period of grace to get up to speed with the new rules and how they apply, it will still be important for them to understand whether or not the rules apply to their workers and to ensure that they have the correct procedures in place to comply. The first step will be to identify any workers who fall under the off-payroll working rules and ensure that the correct tax and NICs are made for them.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such.

On 8 March 2021, all schools and colleges across England will have been expected to reopen to all students to provide face-to-face learning, although secondary schools and colleges can operate a phased return in the first week to allow for mass testing. After that, all students will be expected to attend school in the usual way unless they are shielding, vulnerable or are self-isolating.

Unions have expressed their disappointment with the Government’s decision and we expect that many people working in the education sector will feel anxious about the return. This can bring with it some challenges for senior leadership teams when trying to efficiently manage the return of both students and staff. We have sought to outline some key questions that educational institutions may be asking over the course of this week.

How should you deal with members of staff who refuse to return to work on 8 March because of concerns surrounding Covid 19?

There will be members of staff who are reluctant to return to school. This may be linked to worries over their own personal wellbeing, or the wellbeing of their family members.

Under the Employment Rights Act 1996 (ERA), an employee is protected from (i) being subjected to any detriment by any act, or any deliberate failure to act, by his employer; or (ii) being dismissed by his employer:

1. in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

2. in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

As such, an employee is protected where they have a reasonable belief of serious and imminent danger. In these circumstances, an employee may be entitled to refuse to return to work, or to propose measures for the school to implement to alleviate the danger. If an employee believes that he/she is subjected to a detriment because of this, he/she may be entitled to bring a claim to an Employment Tribunal. As such, where an employee refuses to return to work, schools should be mindful as to how to respond.

A detriment may range from a change to their usual terms and conditions to disciplinary action or suspension. The key question will be whether the employee’s view is reasonable. This will depend on several factors. For example, (i) Government guidance in place at the time; (ii) any detailed and up to date risk assessments carried out by the school which identify the risks and set out the proportionate control measures in place to mitigate them (ideally with employees’ involvement and feedback); and (iii) correspondence from the school/college outlining these measures and providing clear communication channels for staff to use if they have any particular concerns.

What happens if a child or member of staff displays symptoms of Covid 19 whilst they are in school?

Ideally, schools should address this potential situation under their risk assessments and adopt a suitable procedure to follow where these circumstances materialise.

The Government guidance is clear that a symptomatic individual should be sent home and advised to follow the “guidance for households with possible or confirmed coronavirus (COVID-19) infection“.

If a child is awaiting collection from the school by their parent or guardian, they should be moved, if possible, to a room where they can be isolated behind a closed door, depending on the age and needs of the child, with appropriate adult supervision if required. Ideally, a window should be opened for ventilation. If it is not possible to isolate them, they should be moved to an area which is at least 2 metres away from other people. If they need to go to the bathroom whilst waiting to be collected, they should use a separate bathroom if possible. The bathroom must be cleaned and disinfected using standard cleaning products before being used by anyone else.

If a distance of 2 metres cannot be maintained (such as for a very young child or a child with complex needs), PPE (such as a face shield) must be worn by staff caring for the child while they await collection. Any member of staff who has provided close contact care to someone with symptoms (whilst wearing PPE or otherwise), and all other members of staff or pupils who have been in close contact with that person with symptoms, (whether or not if wearing a face covering), do not need to go home to self-isolate unless:

• the symptomatic person subsequently tests positive
• they develop symptoms themselves (in which case, they should arrange to have a test)
• they are requested to do so by NHS Test and Trace or the PHE advice service (or PHE local health protection team if escalated)
• they have tested positive from a LFD test as part of a community or worker programme

How should you treat members of staff who are clinically extremely vulnerable?

Members of staff who are clinically extremely vulnerable are advised to shield and therefore avoid attending work. The guidance advises that “Staff should talk to their employers about how they will be supported, including to work from home. Schools should continue to pay clinically extremely vulnerable staff on their usual terms.”

Those who are shielding are entitled to Statutory Sick Pay (SSP). However, the guidance is ambiguous as to whether schools who adopt the Burgundy Book provisions must continue to pay those who are clinically extremely vulnerable their full pay (being six months full pay during the first six months of absence under the Burgundy Book) where they are unable to work from home in any capacity. Contractual sick pay under the Burgundy Book is contingent on the individual being ill (as opposed to them receiving SSP). Unions have taken the view that full pay should be provided during this period and will likely push back where only SSP is provided, on the basis that it breaches the employee’s contract. However, there is scope to argue that full pay is only due where the employee is able to carry out some form of alternative work from home.

With this is mind, a cautious approach to reducing pay should be taken on the basis that anyone who is clinically extremely vulnerable may be disabled within the meaning of the Equality Act 2010. Where the school has reason to believe this is the case, it will need to be mindful that it is not subjecting a member of staff to discrimination because of their disability. They will also need to consider reasonable adjustments – such as alternative duties to enable them to continue to work.

Anyone who is living with someone who is clinically extremely vulnerable, or where someone is classed as clinically vulnerable, can still attend work where home-working is not possible.

How should you treat members of staff who are pregnant?

We have received several queries regarding how pregnant staff should be treated, particularly surrounding whether they should attend work after 28 weeks of pregnancy. The guidance clarifies that pregnant women are classed as “clinically vulnerable” (rather than “clinically extremely vulnerable”). It therefore follows that they can still attend work where home-working is not possible.

Nonetheless, pregnant staff should be considered under the school’s risk assessment and, whilst there is no obligation, it may also be beneficial to carry out a separate individual risk assessment for each pregnant individual. Employers should consider whether adapting duties and/or facilitating home working may be appropriate to mitigate risks, particularly for pregnant employees after 28 weeks’ gestation, or with underlying health conditions, both of whom may be at greater risk of severe illness from Covid 19.

What can you do when someone refuses to wear a mask?

The guidance is clear that, under national lockdown, in settings where pupils in year 7 and above are educated, face coverings should be worn by adults and pupils when moving around the premises, outside of classrooms, such as in corridors and communal areas where social distancing cannot easily be maintained. It goes onto recommend that face coverings should be worn in classrooms or during activities unless social distancing can be maintained. This does not apply to younger children in primary schools and in early years settings. Previously, the Government only advised wearing masks when in corridors and communal areas where social distancing couldn’t be easily be maintained. Schools should have a process for managing face covering in school that is communicated clearly to pupils and staff.

The guidance also makes it clear that some students and staff are exempted from wearing face masks. This applies to anyone who:

• can’t put on, wear or remove a face covering because of a physical impairment or disability, illness or mental health difficulties; or
• needs to speak or help someone who relies on lip reading, clear sound or facial expression to communicate.

Where an individual does not wear a mask (whether exempt or not), this should be factored in to any risk assessment. If a member of staff who is not exempt from wearing a mask refuses to wear one, the school should try to understand the reasons behind the refusal.

You may be able to discipline anyone who doesn’t have a legitimate reason for not wearing a mask, on the basis that they are disobeying a reasonable management instruction. Given the novelty of this situation, at the time of writing, we are aware of only one Employment Tribunal judgment where dismissal following an employee’s refusal to wear a masked was fair. Please see our case update here for more information. It should be noted that this decision was fact specific and an employer’s decision to dismiss an employee for refusing to wear a mask will not always be deemed fair. As always, it will be of paramount importance to follow the school’s disciplinary procedure.

Finally, the guidance also notes that ‘no one should be expelled from education on the grounds that they are not wearing a face covering‘.

What happens in someone refuses to consent to a lateral flow test?

The Government has produced guidance on testing in schools (found here) and confirmed that rapid testing using Lateral Flow Devices (LFDs) will support the return to face-to-face education by helping to identify people who are asymptomatic.

All schools and colleges should offer regular twice weekly testing to their staff. Testing is not mandatory for staff and they do not need to provide proof of a negative test result to attend school or college in person, although participation in testing is strongly encouraged.

For consenting secondary school pupils, they will take the first three tests in school before moving to home testing. Such testing can be phased during the week commencing 8 March, to manage the number of pupils passing through the test site at any one time. The school should offer 3 tests, 3 to 5 days apart and vulnerable children, children of critical workers, and children in years 10 to 13 should be prioritised. Testing is voluntary but strongly encouraged. The school must have specific consent to test the pupil as it will constitute processing their special category personal data. Data protection laws require the consent form for children (i.e. anyone under 18) to be in ‘clear language that they can understand’. Where the school believes that the child is not able to understand and give their consent, the child’s parents should provide consent on their behalf.

Individuals with a positive LFD test result will need to self-isolate in line with the guidance for households with possible coronavirus infection. It appears that this is even the case where the pupil later tests negative via a more reliable test. Those with a negative LFD test result can continue to attend school unless they have individually been advised otherwise by NHS Test and Trace or Public Health professionals (for example as a close contact).

Staff in primary schools will continue to test with LFDs twice a week at home, as per existing guidance on testing for staff in primary schools and nurseries. Primary age pupils will not be tested with LFDs.

No jab, no job – can you refuse to employ individuals who don’t have the vaccine?

Currently, the Government has no legal basis on which to force individuals to be vaccinated. It is instead setting out to persuade individuals that the vaccines are safe and it is in the population’s best interest for as many people as possible to get vaccinated.

The Health and Safety at Work Act 1974 provides that employers must take all reasonably practicable steps to reduce workplace risks to their lowest possible level. Whilst this does not necessarily include providing “in-house” vaccinations, it can include encouraging staff to take the vaccine when they are offered it, in order to reduce the risk of spreading the virus across the workforce. Likewise, employees have a duty under the Act to “to take reasonable care for the health and safety” of themselves, although the impact of this clause in relation to Covid-19 vaccination has not been explored in the courts.

Some employers are saying that they will require all employees to be vaccinated, unless they have a reasonable reason for refusing. However, decisions to dismiss on this basis should be treated with caution. There may be alternatives available which should be considered first, such as requiring permanent homeworking or a temporary change of role to reduce contact with vulnerable individuals. Where someone unreasonably refuses to have the vaccine following a reasonable management request and there are no alternatives it may, in some circumstances, be acceptable to dismiss.

Under general discrimination law, school’s will also need to ensure that their practices and policies in place regarding the vaccine do not adversely affect a group of people with a protected characteristic (for example, those with a disability). For further information, please see our article on “No jab? No job!” here.

Wow, it’s March already. The daylight hours are getting longer and the majority of us are starting to feel hopeful for spring and the easing of lockdown restrictions. It’s also the month that we trainees start thinking about our next seat rotation.

I wanted to share my experience in a Real Estate seat which often puzzles most as to what the work we do entails.

So, what is PPP & Projects?

PPP stands for Public-Private Partnerships. At its core, it seeks to facilitate the investment in national infrastructure – hospitals, schools, roads, waste management etc. – without increasing public debt.

For example, private lenders might agree to fund the construction of a hospital on behalf of the government for a particular NHS Trust. A Project Company (a special purpose entity created to isolate the financial risk of the project) can then take responsibility for the design and build, and subsequent services provision on the Trust’s behalf. The Project Company itself enters into a number of agreements, including with Facilities Management companies (and sub-contractors) for services such as cleaning, maintenance and/or catering. The private parties will then be remunerated provided performance meets specified standards.

Successes have been mixed and these types of projects and outsourced services have some detractors. Whilst there are many success stories, age-old debates are resurrected when there is a high-profile failure; such as, in recent times, the collapse of construction giant Carillion.

Procurement and maintenance of projects also concerns public sector contracts and therefore public expenditure on goods, works and services. For this reason, procurement is regulated. EU procurement law seeks to create a “level playing field” for all businesses across Europe who seek to benefit from such opportunities. Following Brexit, domestic regulation and preparation for future regulatory reform dominates. The UK will also follow the WTO’s Government Procurement Agreement, and has agreed the EU-UK Trade and Co-operation Agreement.

Okay, and what can I be involved in as a trainee?

The Projects team advises a full range of public and private clients, including Universities, NHS Trusts and private sector operators. As a trainee, you can expect to be involved in the following:

• Non-contentious areas – Reviewing contracts, preparing advice on contractual interpretations, drafting and amending documents, assisting with contractual negotiations, preparing completion “bibles” and undertaking post-completion tasks in relation to: Project Agreements; Facilities Management Contracts; Supplementary Agreements (varying the Project Agreement and/or Facilities Management Contract); and PFI School conversion funding documents and board minutes.

• Research – Research tasks come up regularly and mine have included: procurement laws, Brexit implications, estoppel and Mercury completion. Research in this seat often focusses on niche areas, which can make for interesting reading and starts to develop your working commercial and technical knowledge.

• Clients – During remote working, I have attended conference calls with clients and all parties’ calls with the opposite parties and their lawyers where necessary to progress complex drafting issues and overcome impasse. You will typically draft the attendance note, which can be challenging in the first few months with lots of new acronyms! However, calls are particularly helpful in starting to understand the commercial drivers of each party, the industry “bigger picture” and key players.

• Contentious areas – Opportunities to work with Construction, Commercial Litigation and BRI colleagues on defects issues, payment mechanism operation, changes to parent company guarantors and adjudications; either arising on initial site construction, or subsequent works and/or operation. Also, opportunities to draft correspondence with Counsel, reservation of rights letters and review settlement agreements.

The Projects seat provides a really interesting insight as to how the social infrastructure around you is built and operates. It is also a great opportunity to learn and apply different areas of law. Of course, there is always a great deal to learn if you decide to do a seat or qualify into this area, but the work is varied and the sector continues to evolve post-Brexit.

Following the recommendations made in the Independent Review of Building Regulations and Fire Safety led by Dame Judith Hackitt (Hackitt Report), the Construction Products Association (CPA) has opened a consultation on its proposed code for construction product information (Code). Construction & Engineering Partner, Alan Tate, looks at more depth into this report and what this means for those involved in construction projects.

The consultation can be accessed by visiting https://buildingsafely.co.uk/consultation/ and closes on 31 March 2021.

The Hackitt Report identified the need for products to be “properly tested, certified, labelled and marketed” appropriately and such a system should be clearer, simpler and have an effective system of specification. It addresses the key aspects of:

• a transparent testing regime
• an improvement of testing methods
• clearer labelling and product tracing and
• an enforcement and surveillance regime.

With this in mind, all construction product manufacturers should provide information that passes five “acid” tests (namely, that the information is clear, accurate, up-to-date, accessible and unambiguous). These five points stand behind the 11 clauses of the new Code and the aim of the consultation is to gather views on the implementation, ongoing management and policing of the Code once it is launched.

What are the new clauses for manufacturers of construction products?

The 11 clauses state that a manufacturers of construction products must:

1. have in place a documented sign-off process for creating ‘Product Information’.

• A named individual should be nominated to be responsible for the ‘Product Information’ at its instigation and the final ‘Product Information’ should be signed off by a technically competent person and there must be an audit trail of records and processes undertaken.

2. have in place a formal version control process for all ‘Product Information’.

• In essence this clause aims to establish a formal process of naming and distinguishing between a series of draft documents concerning ‘Product Information’ which lead to a final (or approved) version.

3. not use misleading or ambiguous wording, phrasing or imagery and embrace the use of plain English to ensure accurate representation of ‘Product Information’ and performance claims.

• The clause aims to prevent manufacturers using words or phrases that exaggerate and/or do not accurately represent, a ‘Construction Product’s’ performance or capability.

4. provide specific information where claiming compliance to, or achievement of, any Certification, Classification or Industry Standard.

• Clause 4 aims to ensure that details of a product’s certification is publicly available on the manufacturer’s website, and/or the certificate number and provider must be stated for a third party to check.

5. provide verifiable information when making any product performance claims which are outside of Certification, Classification or Industry Standard tests.

• In practice, this clause means that all stated performance data relating to a construction product must be referenced back to a valid dated test or specified technical assessment.

6. make available on [its] website the descriptive and physical characteristics of the ‘Construction product.

Such information includes, but is not limited to:

• Manufacturer and Product Name
• Packaging
• Product Type
• Material
• Weight/Size/dimensions
• Shelf life

7. ensure ‘Product Information’ is consistent with ‘Manufacturer’s’ supplied products.

• manufacturers must demonstrate an internal process for reviewing the accuracy of ‘Product Information’ concerning construction products and that there is a process to advise suppliers of changes to the ‘Product Information’ brought about by a manufacturing or component change.

8. publish on its website and make easily accessible, clear information on handling, installation, operation, maintenance and disposal of ‘Construction Products’.

9. when making any claims of guarantees/warranties, ensure that its (the manufacturer’s) website states what is covered, excluded, and required to comply with its terms. The guarantee/warranty should be transparent, and in a format recognised by the relevant sector of industry.

10. ensure technical helpline contact details (telephone and/or email) are visible on its website.

• There should be a maximum of two clicks from any page to access a telephone number or email.

11. have in place a robust training programme (for new and existing personnel) to ensure that anyone conveying ‘Product Information’ is competent to the level of knowledge required for their role.

Whilst the Code is subject to change arising from the consultation, it is clear that these obligations imposed on manufacturers reflect the shift towards an effective regulatory framework. By ensuring accountability at an early stage in the supply chain, the clauses go some way towards eradicating what has been described in the Hackitt Report as the sector’s “race to the bottom caused either through ignorance, indifference, or because the system does not facilitate good practice“.

For those currently involved in construction projects, it is important to check and seek clarification from manufacturers that the products meet the performance requirements for which they are being used.

For more information on how this report can affect your construction project contact our Construction & Engineering team.

Kubilius v Kent Foods Ltd ET/3201960/2020

In this recent case, which was heard on 19 January 2021, the Employment Tribunal (ET) considered whether the sanction of dismissal without notice of Mr Deimantas Kubilius (the Claimant), after he refused to wear a face mask, was unfair.

Background

The Claimant commenced employment with the Respondent on 25 July 2016 as a Class 1 Driver. The Respondent was a distribution company which transported food products from suppliers to customers. As part of the Claimant’s role, he was required to carry out driving work for a key customer (the Customer) of the Respondent. The Respondent’s Staff Handbook expressly required employees to follow customers’ instructions regarding PPE requirements and to comply with their PPE instructions when visiting their sites.

On 21 May 2020, the Claimant was required to visit the Customer’s site. Later that day, the Customer reported an incident to the Respondent involving the Claimant, part of which involved him refusing to wear a mask after repeated instruction by the Customer, on the basis that “he was in his cab and he didn’t have to“. He was consequently banned from the site. The Claimant argued that he was not required to wear a mask in his cab as the Government guidance stated (at that time) that wearing a face covering was optional.

An investigation was carried out and the Claimant was suspended on full pay pending its outcome. It was considered that the Claimant’s account of events showed a breach of the requirements in the Employee Handbook to maintain good relationships with customers and suppliers and to cooperate to ensure a safe working environment. The Respondent took steps to ask the Customer to rescind the ban on the Claimant, however, this was refused.

The disciplinary hearing took place on 12 June 2020. At the meeting, the Claimant reiterated that the Customer’s request was wrong; he was in his own environment and the Government guidelines stated that wearing a mask at work was optional. The Respondent dismissed the Claimant on the basis that a deliberate refusal to comply with a health and safety instruction was a serious breach of contract. If the Customer’s site ban had been rescinded, it may have considered a final written warning as an alternative to dismissal, but this had not been the case.

The Law

Subject to some exceptions, the general rule is that, where an employee has completed two or more years’ service with their employer, they have a right not to be unfairly dismissed. Broadly speaking, a dismissal will be unfair, unless:

• the employer can show that the reason for dismissal was one of five potentially fair reasons (see below); and

• the ET finds that, in all the circumstances (including the size and administrative resources of the employer), the employer acted reasonably in treating that reason as a sufficient reason for dismissal.

The five potentially fair reasons are as follows:

• Capacity or qualifications

• Conduct

• Redundancy

• Breach of statutory duty or restriction

• Some other substantial reason

Third-party pressure to dismiss an employee may amount to ‘some other substantial reason’ and therefore a potentially fair reason for dismissal. In looking at whether dismissal was an appropriate sanction, the question is not whether some lesser sanction would, in the ET’s view, have been appropriate, but rather whether dismissal was within the band of reasonable responses.

For further information, please see our article on Unfair Dismissal Procedures here.

What did the Employment Tribunal decide?

The Respondent argued that it dismissed the Claimant because of his conduct or, alternatively, because of third-party pressure which amounted to ‘some other substantial reason’, and that his dismissal was fair.

The ET found that the principal reason for the dismissal was the Claimant’s conduct.  The Respondent had a genuine belief that the Claimant was guilty of misconduct and the investigation fell within the reasonable range of responses. The fact that there was company documentation which set out an obligation on the Claimant to comply with PPE instructions at the Customer’s site, and he had admitted that he refused to comply with this, also meant that there were reasonable grounds for the Respondent to conclude that the Claimant had committed misconduct.

Whilst another employer might have chosen to issue a warning, dismissal fell within the range of reasonable responses. Taking into account the relevant circumstances, including Claimant’s lack of remorse and the practical difficulties caused by the site ban, the ET held that the dismissal had been fair.

What can employers take from this?

This judgment by no means provides that all employers are entitled to dismiss an employee without notice if they do not wear a mask. However, it does highlight that, in certain circumstances, an employee’s refusal to wear a mask can be considered gross misconduct and constitute a potentially fair reason to dismiss.

This is the first case that addresses this issue and is only a first instance decision which has not been considered by the higher courts. Therefore employers should be mindful that a very different outcome could be delivered on different facts. However, this judgment supports a view that dismissal will be permissible in certain settings. For example, a dismissal for refusal to wear PPE is more likely to fall within the band of reasonable responses in respect of employees who work with vulnerable individuals; for example. paramedics or carers, where the requirement to comply with strict health and safety rules is likely to be paramount.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. 

There exists in English law a concept that exercise of a right for a long period of time should be capable of legitimisation. This was considered in a recent High Court case concerning rights of drainage.

The case

The Claimant in the case of Bernel Limited v Canal and River Trust [2021] had acquired land near Macclesfield, which it intended to develop. The site comprised an existing dwelling and its garden, and a large adjoining field, on which the Claimant was building nine new houses.

The Defendant was an adjacent landowner. A pipe of uncertain origin ran across the Claimant’s land and discharged on to the Defendant’s land and into a feeder canal.

The Claimant needed to be able to drain the surface and foul water from the development on to the neighbouring land, but had not been able to reach an agreement with the Defendant about this. To try to circumvent the need for an agreement, the Claimant asserted that it in fact had a preexisting right, on two alternative bases:

1. the pipe was a natural watercourse (in that it had been installed along the course of a naturally-occurring stream) and so the intended drainage was permitted under the riparian rights the Claimant had as landowner; or
2. the necessary rights had been acquired by prescription under the doctrine of lost modern grant.

The Defendant’s position was that the pipe was a sewer or drain bringing effluent from septic tanks further up the street, and water from field drains, rather than naturally flowing surface water.

The doctrine

The doctrine of lost modern grant gets its name from the concept that the use is presumed to have its origin in a legitimate deed of grant, which has been lost. However, there is no need to prove the existence of such a deed or the parties to it when bringing a claim, and even demonstrating that no grant was in fact ever made may be insufficient to rebut the presumption.

For a claim that an easement has been acquired by prescription under the doctrine of lost modern grant to succeed, there are two key requirements which must be met:

• The use must have been enjoyed for at least 20 years without other lawful explanation; and
• The use must have been ‘as of right’, that is without force, without secrecy and without permission.

The Judgment

The Court found that, although riparian rights would have enabled the Claimant to do as he wished, the expert evidence showed that the pipe was not a natural watercourse – and so the claimed riparian rights did not exist.

The prescription claim also failed, as the Court found that the evidence did not establish 20 years’ discharge of surface water or effluent from the Claimant’s land into the pipe. The septic tank of the existing dwelling was not connected to the pipe, and there was no evidence of any significant amounts of surface water from the site having otherwise drained off the site through the pipe.

Establishing an easement by long user

Although the Claimant’s prescription argument failed, the Judge explained what other findings he would have made, if the evidence had shown 20 years’ use. Of particular interest were his comments about the physical extent of the ‘dominant’ land, and whether the proposed use amounted to a radical change in
the site.

For every easement, there is ‘dominant’ land (the land asserting the use) and ‘servient’ land (the land burdened with the use). In this case, it was found that the dominant land could only ever have been that of the existing dwelling and its garden, and land in the immediate vicinity of the pipe – not the whole site.

Based on that finding, the Judge held that the development of the site constituted a ‘radical change’ in its identity, which is grounds for the servient land owner to object, if such change results in a substantial increase in the burden on the servient land.

If the claim had instead been for intensification of the burden from the existing dominant land, any pre-existing right would have expanded to include that. The Judge also noted that had he found that the dominant land constituted the whole of the site, the proposed user would not be excessive as the evidence was that the burden on the servient land would not have significantly increased.

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Jess Hopkins, third-seat Trainee Solicitor, shares her experience of working remotely during the Covid-19 pandemic.

7:00: I wake up and prepare for another day working from home. I usually do a 30-minute HIIT workout with my housemates (which includes a pharmacist, cardiologist and meteorologist, so we are well equipped for any emergency …).

8:30: Whilst the Michelmores system on my laptop / screen is booting up, I make my first coffee of the day. My research skills have vastly improved since working at Michelmores, which did help me decide which Nespresso machine to buy (other brands are available).

8:31 I start my commute to work.

8:32: I have arrived.

8:33: I settle down at my designated work from home area (a desk two metres from my bed counts, right?) and eat my breakfast whilst checking my emails to see what has come in since the previous evening, allowing me to prioritise my workload.

9:00: I am currently in my third seat in the Planning team, a seat that offers a lot of variety in terms of day-to-day work. My first task of the day involves reviewing and making amendments to some contracts where we are acting for the Acquiring Authority in the making of a Compulsory Purchase Order and Side Roads Order for a large link road scheme in Cornwall.

11:00: Time for a MS Teams catch-up with the team. I am accused of ‘blurring’ my background, but turns out my white walls are actually just that boring. Besides the temperamental Wi-Fi connections, surprise pet appearances and frequent ‘you’re on mute Jess’, it’s a great way to keep updated and connected with everyone.

12:00: I am asked to do an urgent bit of research. I know I need to prioritise this because the client needs the advice as soon as possible. As a trainee in Planning, research tasks are a fairly normal assignment to undertake. These can help broaden your knowledge and enable you to learn about unusual area of law you might otherwise not come into contact with (this has ranged from police helicopter sites to flower pots on a roof terrace)! I produce a report setting out my findings and considering any practical advice we can give the client.

13:30: I jump onto one of Michelmores ‘Coffee Roulette’ sessions over lunch, which are designed to recreate the conversations we currently miss through not being in the office together. They are run every week where you are placed randomly into a MS Teams break out room with three other colleagues from the Firm. This is a great way to get to know people across different teams, locations and roles. After this, I head out on my bike for a quick cycle ride.

14:30: I deliver a Knowledge Session on the Use Class Order 1987 and recent changes brought about by the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (SI 2020 No.757) to other members of the Planning team. There has been a hive of activity in this area, and it is my job to keep on top of it!

15:30: I look through my emails and reply to those I can and add any tasks to my to-do list. My supervisor springs a random MS Teams upon me so I can help her decide what coat (there were several) to return.

16:00: I work with my supervisor on some urgent planning due diligence and combine our findings for a Report on Title, working closely with colleagues in Transactional Real Estate.

17:30: I sign off for the day. A solicitor, pharmacist, cardiologist and meteorologist walk into a bar … how lucky! I head off to IKEA to pick up some decoration to ‘spice’ up my MS Teams background.

The Court of Appeal has just handed down judgment in the telecoms case of Cornerstone Telecommunications Infrastructure (CTIL) v Ashloch Limited (1) & AP Wireless II (UK) Limited [2021]. Over the last year or so we have seen a flurry of telecoms cases, many of which have been  considering a fundamental issue; namely the cross-over in operation between the new Electronic Telecommunications Code (“Code”) and the Landlord & Tenant Act 1954 (“1954 Act”). The question of whether a particular arrangement is governed by the Code or the 1954 Act can impact on several critical issues, including the level of rent which can be demanded and the type of renewal procedure.

In his Judgement Lord Justice Lewison provided useful guidance of the relevant issues regarding the renewal procedure for 1954 Act leases, which are subsisting agreements under the Code. We consider this guidance and its consequences.

Summary of findings

The first issue under appeal was whether the lessor, A P Wireless (APW)) was able to confer Code rights under Part 4 in circumstances in which they were not in occupation of the site.

The conclusion was that there should be no departure from the proposition established in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2019] EWCA Civ 1755 (“Compton Beauchamp”) which found that only the occupier can confer Code rights, except for certain limited situations set out elsewhere within the Code.

The second issue was who is the occupier? This question was also considered in Compton Beauchamp and as this decision is being appealed, it will now be for the Supreme Court to decide the identity of the occupier and, if necessary, overturn the Court of Appeal’s decision in Compton Beauchamp.

Finally, the Court of Appeal approved the reasoning of the Upper Tribunal in rejecting CTIL’s arguments that it could use Part 4 of the Code to renew the subsisting agreement, rather than the 1954 Act procedure. This means that the rent for the renewed lease will be calculated in accordance with the 1954 Act rather than the Code.

This provides significant advantages to landowners, who will be able to rely on the open market rent provisions of the 1954 Act, as compared to the “no network” assumptions of the Code, which have a marked downward effect on rent.

The conferral of Code rights

The first issue considered whether Code rights could be imposed on a landowner in favour of an operator, occupying a site as a statutory periodic tenant under section 24 of the 1954 Act. We considered the Upper Tribunal’s (“UT”) decision on this point in our article “Electronic Communications Code: Interaction between the Code and the LTA 1954“.

The UT had said that Part 4 was about imposing agreement on landowners, whereas subsisting agreements were equivalent to Code agreements already granted in accordance with Part 2. Therefore, CTIL argued, Part 4 did not need to be excluded, as it could never apply. Furthermore, Part 5 could not  be used to obtain a new lease and so the 1954 Act procedure had to be followed.

That meant a higher 1954 Act rent would apply and ongoing uncertainty for cases in which the operator was the occupier on lease renewal sites; this led to this appeal by CTIL.

The law & facts

Paragraph 9 of the Code confirms that “a code right in respect of land may only be conferred on an operator by agreement between the occupier of the land and the operator.”

This case concerned a rooftop site and APW argued that CTIL could not use Part 4 of the Code as it was already in occupation as the operator and could not contract with itself. On this issue the Compton Beauchamp appeal had already established that rights could only be conferred by the occupier. However we currently await the outcome of an appeal to the Supreme Court on that case, which looks likely to focus on who the occupier is, rather than whether they are the only party, which can confer Code rights.

On this appeal, Lord Justice Lewison, in his leading judgment, confirmed that the Government’s policy on the Code was that it should not be retrospective. Subsisting agreements should be allowed to run their course as they may have been “carefully negotiated agreements made under the existing code.” The interpretation argued for by CTIL would undermine that policy, as they were arguing that the Compton Beauchamp decision meant that an operator could not seek additional Code rights during the term of an agreement.

Court of Appeal decision

The Court of Appeal rejected this argument finding that such a right would amount to a unilateral weapon, wielded only by the operator. It would be contrary to Part 5 of the Code, which allows a request for additional Code rights, but only after the site provider could end the agreement in any event. If the operator could use Part 4 to circumvent this provision, what would be the point of the Part 5 limitation in the first place?

A further argument advanced by CTIL was that paragraph 40 (8) of the Code says that an operator in situ may not have an order made against it requiring the removal of apparatus at the end of the agreement, if there is a pending application under paragraph 20, which deals with how and when a Code rights agreement can be imposed.

The Court of Appeal said that this did not expand paragraph 20 and that the original agreement may well have been terminated, because of serious operator default. It would be very strange if the operator could simply start all over again by applying for a new agreement under paragraph 20.

The conclusion was that there should be no departure from the proposition established in Compton Beauchamp, which is that only the occupier can confer Code rights except for certain limited situations set out elsewhere within the Code.

Who is the occupier?

The second issue was who is the occupier? This question was also considered in Compton Beauchamp and it was not accepted in that case, that the operator can never be the occupier. Occupation primarily means physical presence on the land and control thereof. However, an operator would have management and control over the land, if it had been granted a lease, even if the land could be described as unoccupied in a physical sense.

So, even if CTIL was not the occupier in the primary sense of the word, it did not mean that APW was, particularly given their lack of physical presence and the fact that CTIL enjoyed a lease of the rooftop. It will now be for the Supreme Court to decide the identity of the occupier and, if necessary, overturn the Court of Appeal’s decision in Compton Beauchamp.

Subsisting Agreements

The transitional provisions of the Code aim to provide continuity and clarify the circumstances in which the new law is to apply. The basic principle is that all subsisting agreements under the old code take effect as new Code agreements, but certain qualifications apply where the 1954 Act applies.

A telecoms lease excluded from security of tenure will be renewed in accordance with the Code, whereas the 1954 Act will apply to a renewal of a similar lease, whose primary purpose was not to grant Code rights.

Where the parties have not contracted out of security of tenure, then a telecoms lease must be renewed in accordance with the 1954 Act, but will thereafter be regarded as a Code agreement.

Court of Appeal view

The Court of Appeal reviewed the UT’s reasons for rejecting CTIL’s arguments, that it could use Part 4 of the Code to renew the subsisting agreement, rather than the 1954 Act procedure. The reasoning of the UT was approved and Lewison LJ added that a landlord under the 1954 Act regime could oppose the grant of a new lease, where it intended to occupy the site for the purposes of its own business. No such opportunity existed within the Code and to deprive a landlord of such a right in the context of an ongoing lease would be a significant and unjustified erosion of their legal rights.

The point was made that CTIL’s arguments were principally a list of complaints about the way the transitional provisions worked, rather than defects in the Code itself. The issues raised in the appeal only arise in the context of subsisting agreements, as any renewed lease will be a Code agreement, which will then, itself, have to be renewed in accordance with Part 5 of the Code.

Davis LJ, in agreeing with the leading judgment, made some interesting comments as to how CTIL’s attempts to reopen the arguments, aired in Compton Beauchamp, could not be allowed. It was also observed that CTIL was a commercial outfit, albeit one engaged in providing an efficient telecommunications service. There was a tension between that obvious public benefit and the need to recognise the private property rights of landowners. In attempting to find the right balance in this case the Judge described the Code as being “fiendishly complex”; there are few involved in this area of work who would disagree.

A school’s obligations

The Safeguarding Vulnerable Groups Act 2006 (SVGA 2006) introduces various obligations on certain employers to enable them to check the suitability of employees or volunteers who are applying to work with children or vulnerable adults.

The following five types of activity are potentially regulated activity relating to children:

• Teaching, training or instruction.
• Care for or supervision of children.
• Advice or guidance.
• Moderation of a public internet service wholly or mainly for children.
• Driving a vehicle for the sole purpose of conveying children.

Inevitably, a majority of roles within a school therefore involve “regulated activity”. This has the effect that schools fall within the definition of a “Regulated Activity Provider” (RAP), being someone who is responsible for the management or control of regulated activity, which they make arrangements for others to engage in. The type of role affected by the SVGA 2006 may include teachers, supply teachers, classroom assistants, caretakers, cleaners, catering and transport staff, receptionists and administrative staff, crèche and nursery workers, registered childminders and youth workers.

The SVGA 2006 places specific obligations on RAPs to check whether an individual has been barred from working with children. An individual’s barred status is currently available (i) as part of an enhanced criminal record (DBS) check; or (ii) through the DBS online Update Service, if the individual has subscribed.

The employer must, in respect of prospective teachers or any other person working at the school and having regular contact with children, obtain an enhanced DBS check together with a request to check the children’s barred list before or as soon as practicable after their appointment. A DBS check not only gives information on whether the individual is barred, but it also sets out information on the individual’s previous criminal convictions.

What criminal convictions can be taken into account?

Prior to 2013, a standard or enhanced DBS certificate would contain all of an individual’s convictions and cautions, whether current or spent and whatever the nature of the offence.

On 29 May 2013, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 (SI 2013/1198) and the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 (SI 2013/1200) came into force. The Rehabilitation of Offenders Act 1974 (ROA) sets out in legislation rehabilitation periods, and provides that individuals do not have to disclose spent convictions unless they are covered in the Rehabilitations of Offenders Act (Exceptions) Order 1975 (Order).

This Order sets out the circumstances in which an individual can be asked about spent convictions and when an employer can consider these. This includes “any employment as a teacher in a school or establishment for further education and any other employment which is carried out wholly or partly within the precincts of a school or establishment for further education, being employment which is of such a kind as to enable the holder to have access to persons under the age of 18 in attendance at the school or establishment for further education in the course of his normal duties.”

Therefore, teaching applicants would still be required to disclose spent convictions. They would not, however, be required to disclose protected convictions and protected cautions.  If the applicant’s offences fall within the protected convictions or protected cautions categories, the school is not legally entitled to ask about them or take them into account to dismiss an employee.

Until recently, only the following convictions fell within the remit of a protection conviction:

• A conviction received by a person aged under 18 at the time of the offence resulting in a non-custodial sentence (this would be removed from a DBS certificate after five and a half years).
• A conviction received as an adult resulting in a non-custodial sentence (this would be removed from a DBS certificate after 11 years).

Certain specified offences would never be eligible for filtering, including violent and sexual offences. If a person had committed more than one offence, then details of all of their convictions would always be disclosed.

The following cautions fell within the remit of a protected caution:

• A caution administered to a person aged under 18 at the time of the offence (this would not be disclosed after two years).
• A caution administered to an adult (this would be removed after six years).

A caution would not be removed if it related to an offence specified as never being eligible for filtering.

November 2020 developments

The above “filtering mechanism” (in relation to protected convictions and protected cautions) had been widely criticised for years, predominantly on the basis that the multiple conviction rule under which previous offences were disclosed caused “embarrassment and humiliation” in various cases. After a further challenge, the Supreme Court held in R (on the application of P) v Secretary of State for the Home Department [2019] UKSC 3 that the revised approach was inadequate and required further amendment.

On 9 July 2020, the Government announced several proposed changes to the criminal records disclosure regime and laid draft regulations removing, in most cases, the requirement for automatic disclosure and self-disclosure of youth cautions, reprimands and warnings, as well as removing the “multiple conviction” rule. These changes came into force on 28 November 2020.

The effect of this is that the definition of “protected caution” and “protected conviction” are amended and essentially widened. Under the new disclosure regime, a “protected caution” will include all those given where a person was under 18 at the time of the caution. The “multiple conviction rule” has also been removed. The effect of these changes is that youth cautions and multiple convictions no longer have to be disclosed when a person is asked about them, and will no longer be subject to mandatory disclosure in criminal records certificates. For the avoidance of doubt, the multiple convictions rule applies only to convictions that would fall within the scope of a “protected conviction”. The DBS certificate will no longer automatically include these types of protected convictions or cautions. If an employer takes into account a conviction or caution that would not have been disclosed, they are acting unlawfully under the Rehabilitation of Offenders Act 1974.

What does this mean for employers?

In the light of the revised scheme, the DBS has issued a Filtering Guide which advises employers who use standard job application forms to include the following information/questions:

• The amendments to the Exceptions Order 1975 (2013) provide that certain spent convictions and cautions are ‘protected’ and are not subject to disclosure to employers, and cannot be taken into account. Guidance and criteria on the filtering of these cautions and convictions can be found on the Disclosure and Barring Service website.
• Do you have any unspent conditional cautions or convictions under the Rehabilitation of Offenders Act 1974? (Y/N)?
• Do you have any adult cautions (simple or conditional) or spent convictions that are not protected as defined by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020? (Y/N)?
• The amendments to the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (2013 and 2020) provides that when applying for certain jobs and activities, certain convictions and cautions are considered ‘protected’. This means that they do not need to be disclosed to employers, and if they are disclosed, employers cannot take them into account. Guidance about whether a conviction or caution should be disclosed can be found on the Ministry of Justice website

Employers should also signpost candidates to Nacro or Unlock, which are charities that help individuals understand the amount of information on their criminal record history they need to disclose in job applications.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. 

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International divorce expert and Head of Michelmores’ Family team, Daniel Eames is featured in the Mail Online’s article ‘Digital divorces: How splitting up over Zoom or Skype instead of fighting in court could save money and reduce conflict.‘

The article is available in the This is Money section of the Daily Mail website. Daniel was interviewed about the impact of the pandemic on divorce proceedings in the UK, where restrictions have resulted in many couples needing to shift to a virtual format when it comes to finalising arrangements and going to court.

Daniel is a partner at Michelmores and is also chair of Resolution’s International Committee which advises the UK Government on aspects of family law.

You own some land which is not registered at the Land Registry. You keep the title deeds under your mattress, where they are safe. You haven’t inspected your land in years but decide one day to register it, and ask your solicitor to deal with the formalities. The solicitor tells you that part of your land has already been registered to someone else. How can this be when you have the title deeds?

Land can be acquired by a party who is not its legal owner by squatting on it for a defined period of time, thereby dispossessing the paper owner.

All the squatter needs to do is prove:

• Uninterrupted factual possession for the requisite period
• Intention to possess (to exclude the world at large)

If successfully established, Land Registry may give the squatter a possessory title to the possessed land.

Can you wave your paper title and demand your land to be returned to its rightful owner?

For unregistered land: the effect of sections 15 and 17 of the Limitation Act 1980 is that the title of the owner of the land will be extinguished 12 years after the squatter first begins to fulfil the above conditions. Once the limitation period has run its course in respect of unregistered land, the paper owner’s title is extinguished by operation of statute.

For registered land: ownership is derived from registration rather than possession. A squatter is entitled to apply for registration as proprietor of land after 10 years of adverse possession but the registered proprietor and certain others interested in the land will be notified of the squatter’s application, allowing the opportunity to object.

In summary, the registered land regime offers increased protection to registered landowners against squatters. Therefore you may wish to consider:

1. Making a voluntary application for first registration, if your land is unregistered
2. Making sure your address is kept up-to-date, if your land is registered, should Land Registry ever be required to send notification of a particular application
3. Formalising any third party occupation of your land, by way of a tenancy or licence for example

For more information please contact Gail Bedford on Gail.Bedford@michelmores.com or 01392 687683