Monday, 11 February 2019

New Rights For Workers

Here's the countdown to new workers' rights brought to you by courtesy of the swingingly entitled Employment Rights (Employment Particulars and Paid Leave ) (Amendment) Regulations 2018 (SI 2018/1378) and the Employment Rights (Miscellaneous Amendments) Regulations 2019 (which await being signed off).

06 April 2019    The maximum penalty for aggravated breach of a worker's employment rights under s12A of the Employment Tribunals Act 1966 will generally increase from £5,000 to £20,000.

06 April 2020    One year plus to go so be patient. Workers engaged on or after this date will be entitled to a statement of the particulars of their work even though they are not employees. There will be no minimum qualifying period of work in order to be entitled to be given the statement. The current qualifying period for employees is one month. The statement containing the principal work conditions  will have to be provided at the commencement of work. The remainder can be given in instalments but within two months of commencement of work. Added to the particulars currently needed will be the days of the week to be worked, whether the are variable and, if so, how the variations are to be decided and any probationary period which is to be suffered with its conditions and duration. There are special provisions relating to workers who are already in post before 06 April 2020. And the reference period for calculating holiday pay will increase from 12 to 52 weeks. This will knock out the trick of clocking up as much overtime as possible during the current 12 weeks  which are taken to calculate earnings and thereby increasing holiday pay and causing considerable resentment among workmates.

Sunday, 10 February 2019

Major Flight Delay Court of Appeal Ruling

Airlines will escape having to pay flight delay compensation - the delay must be for at least three hours - if they can prove the delay was down to an extraordinary circumstance.  If it was down to an air traffic management decision such as the suspension of flights due to thunderstorms, is that legally due to an extraordinary circumstance?

In Daniel Blanche v Easy Jet Airline Co Ltd [2019] EWCA Civ 69, the airline maintained that thunderstorms did amount to an extraordinary circumstance. The passenger who was held up for five hours 42 minutes argued that it was not an extraordinary circumstance and that regard should be had to the underlying reason for the delay. There was nothing exceptional about thunderstorms!

Last Wednesday 06 February 2019, the Court of Appeal ruled that the airline was right and the passenger was wrong. The air traffic management decision amounted to an extraordinary circumstance so that the claim had to fail.

So whatever the underlying cause of the delay in your case, if air traffic control has prevented the flight from departing, I'm afraid you've had it.  

Tuesday, 5 February 2019

Credit Card Debts: How Long Does Creditor Have To Sue?

If you owe money, your creditor generally has six years within which to sue you (see chapter 10 of my book Breaking Law). After that, you are usually off the hook and have a good defence to any claim they start against you in court; the You Are Too Late, Mate, Defence.

Here is the conundrum. With a credit card debt, from when does the clock start ticking - from when you default with payments or from when you  subsequently fail to comply with a written default notice which the creditor must send you before taking you to court? 

The conundrum has just been solved by the Court of Appeal in Doyle v PRA Group (UK) Ltd [2019] EWCA Civ 12 where the cardholder was said to owe over £26,000. It was ruled in that case that the six years starts  from the later date. That's when you fail to comply with the default notice. 

But say you creditor waits for an eternity after you have defaulted with payments before sending out the default notice. That could lead to you being prejudiced and having a court  claim form come hurtling through your letterbox many years later when you had thought the debt had gone away. In that situation, you might be able to get the debt wiped out or reduced by asking the court to exercise its 'unfair relationship' powers under sections 140A and 140B of the Consumer Credit Act 1974.


Friday, 1 February 2019

Escaping Taxman's Penalty For Non-Payment

The taxman has won an appeal case.* You may think I have lost my marbles in telling you about it. My marbles are intact. I am telling you about it because it highlights how the defence of 'reasonable excuse' can get you off having to pay tax penalties not only for failing to get your return in on time but  for failing to pay on time the tax you have been assessed to pay. And by the way, yesterday 31 January 2019 was the deadline for settling your self-employed tax assessment. What do you mean, you forgot?!

Leading barrister Timothy Raggatt QC was stung for late payment penalties relating to two tax years which totalled nearly £13,500. He appealed to the first tier tribunal of the tax chamber (as one does) and lost. So he appealed again to the upper tribunal (as one does) and has just lost. He was represented by Timothy Raggatt QC (as one would be as it tends to keep legal fees down). 

Mr Raggatt's argument was that he had a 'reasonable excuse' for late payment. This, he said, was that events out of his control had prevented him from paying on time. He principally relied on the substantial reduction in his income from the cuts in the legal aid budget and his bank's refusal to increase his overdraft facility. 

Now, to succeed with a defence of 'reasonable excuse' you have to show that you exercised reasonable foresight and due diligence and a proper regard to the fact that the tax liabilities concerned would become due on particular dates. The Finance Act 2009  (go to paragraph 16 of the 56th schedule if you must and you can bear it) states that an insufficiency of funds is not a 'reasonable excuse' unless it is attributable to events outside the taxpayer's (or tax non-payer's!) control and that if you rely on any other person to do something, you must have taken reasonable care to avoid their failure to do so. 

Both tribunals had considerable sympathy for Mr Raggatt's predicament (a fat lot of use that was!) but, as it was put on this latest appeal, he could have done more to have avoided that position.

What was made clear by the upper tribunal - and this may be of help to you- is that the principles relating to 'reasonable excuse' are the same in late return penalty and late payment penalty cases. There was no legal requirement on the part of a self-employed professional person to reserve for their  tax liabilities but a person with such an episodic life as Mr Raggatt would be well advised to take reasonable steps to make some provision for tax liabilities or to ensure that they had appropriate bank facilities to meet their expected tax liabilities if they subsequently wished to plead a 'reasonable excuse'.  Taking such reasonable steps might not end up enabling a taxpayer to deal with unforeseen events but if it appeared they had done all that could be reasonably expected of someone in their position then the defence of 'reasonable excuse' might be a winner.

*Raggatt v Commissioners for HMR&C [2018] UKUT 412 (TCC)

Friday, 25 January 2019

A night out with Stephen Gold? How very dare you! Chapter 25 – Compensation for Hassle and Mental Distress

There have been loads of decided cases on the subject of when and whether you can claim for the hassle and metal anguish caused by your predicament. Many of them contradictory. The law could even change with a decision of the Supreme Court.

But what I recommend is that you ensure it is not your case that goes there as that could be expensive. Instead the county court and High Court are likely to deal with any claim by (or against) you by applying the general principles set out in Chapter 25.

* Do check posts on this blog for any legal developments since this chapter was originally published.

NOTE: This is the last extract we'll be publishing for now. Hope you have been helped by and enjoyed the free extracts of Breaking Law we have brought you over the past two months. We will be treating you to some more from time to time in the future. If you would care to buy my book (this Gold bloke has a nerve, hasn’t he?) as your own doorstop or as a gift for a family member or friend who is need of advice or can be expected to be in some sort of legal trouble in the very near future, then please don’t be shy to do so.

The chapters you haven’t seen cover the delights of bankruptcy, divorce, mortgage problems, shopping disputes and much more.

Tuesday, 22 January 2019

Online Probate: New DIY system

If you are  personally handling the winding up of a deceased's person's affairs as their executor then you can now apply online for the grant of probate (see https://www.gov.uk/wills-probate-inheritance/applying-for-a-grant-of-representation). The online trial which I previously reported on (see http://www.breakinglaw.co.uk/search/label/probate) has just been extended. You should find the process relatively straightforward. This applies where the deceased lived in England and Wales. But the online system will not presently cover applications for a grant of letters of administration which is the law's answer to probate where the deceased did not leave a will. For who gets what with no will and who can claim if they have been left out under the will or the intestacy laws which are triggered by no will, see that excellent book Breaking Law by 'erm - me!

Fees for applying for probate are set to be increased next April so don't hang about in making a probate application. Most certainly, don't kill anyone off to save on fees.

Waitrose's Richmond Lifts: LATEST

I have to report that the smallest of the trio of lifts at Waitrose's Richmond-upon-Thames  store (that's the one next to the larger lift which believes it is coming down when in fact it is going up - see http://www.breakinglaw.co.uk/search/label/Waitrose) has been out of action. This follows a customer being stuck in the lift last Friday when I just happened to be on patrol.

I thought you should know.