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36 Bedford Row
London
WC1R 4JH

DX 360 LDE
T +44 (0)20 7421 8000
F +44 (0)20 7421 8035

06/11/14

36 Bedford Row is recruiting for Junior Clerk (Crime)

For full details please click here

Covering letter and CV to michelle@36bedfordrow.co.uk by 6pm on 19th November

 

 

06/11/14

36 Employment – Holiday Pay Time Bomb?

John Cridland, Director General of the CBI, is unhappy. Whatever glow he acquired over the half term holiday has disappeared with the publication of the decision of the Employment Appeal Tribunal in Bear v. Fulton, which deals with the calculation of holiday pay. He thinks the decision will costs millions of pounds and bankrupt small firms.

But is he right? 

Not necessarily.

Traditionally UK employers have calculated holiday pay solely by reference to basic pay, excluding any overtime time pay. A straightforward reading of S.234 of the Employment Rights Act 1996 would seem to indicate that this is the correct approach.

However, in the case of Locke decided earlier this year, the ECJ held that as a matter of EU Law commission, payments had to be taken into account when calculating holiday pay. Locke creates very practical problems of implementation. A commission–based employee will normally receive commission whilst on holiday from deals done earlier in the year. However she will suffer a dip in take home pay at a later point because she did not earn commission while on holiday. The practical problem arising from Locke is how to identify and compensate for the dip.

The principle underlying Locke was even more significant: it was that workers should not suffer a dip in take home pay whilst on holiday since this would act as a disincentive to take the holiday which EU law regards as a health and safety issue.

That being so, the writing was on the wall for employers with regard to compulsory overtime. It is wholly unsurprising that the EAT held in Bear that the Locke principle applied to compulsory overtime and many employers have been accruing for this since Locke.

The employers’ complaint post Bear is that they have for many years been following S. 234(1) which the EAT has now ignored. It regarded itself as bound to implement EU law even if that meant rewriting UK law. This aspect of the matter may be addressed through appeal to the Court of Appeal and then the Supreme Court. Or it may be addressed through the ballot box in 2017. But either way the resolution is some distance away.

Meantime, will John Cridland’s fears materialise? There are two issues. The first is holiday pay obligations going forward and the second is the question of arrears.

As to the holiday pay going forward, the issue of what should be taken into account is now clear at least as a matter of principle. The UK government is not going to intervene in the short term because it is bound by EU law and any appeal to the Court of Appeal is at least a year away. Also, there are many ways for employers to mitigate the effect of Bear. For a start, it applies to only compulsory overtime. In addition, it is open to employers to vary the contract so as cut pay /allowances to take into account increase holiday pay costs.

As to arrears, extravagant fears have been expressed about backdated claims going back years and costing millions. As will be seen however, the judgement of the EAT in Bear calms these troubled waters.

According to S.27(1) of the Employment Rights Act 1996, claims for under payment of holiday pay have to be brought within 3 months of the underpayment; or within three months of the last of a series of underpayments.

The concern is that historic underpayments going back as many as 16 years might be part of a series of underpayments ending within 3 months of a claim.

However, the EAT noted that under Regulation 13 and 13a of the Working Time Regulations, workers (including employees) are entitled to 28 days annual leave per annum.

Regulation 13 implements the 20 days minimum required by EU Law and Regulation 13A provides for an extra 8 days as a matter of UK law. On any view, payment for the extra 8 days is governed by S. 234(1) not by EU Law.

The employers argued in Bear that payment in accordance with S.234(1) for the Reg 13A days would be sufficient to break the chain and the EAT accepted this argument. Moreover it also seems to have held that the Reg 13A days were “additional leave” and must be interpreted as being the latest of the days holiday taken any given year.

Therefore due payment of holiday pay for S.13A days will prevent any previous days holiday being part of a chain extending to the point 3 months before the claim. This aspect of the EAT’s decision may itself be successfully appealed. By the time that happens however time will have passed. And if in the meantime, an employer has paid in accordance with Locke/Bear those payments will themselves have broken the chain.

06/11/14

36 Property – Illegal Immigrants in the Private Rented Sector

Download the full article by Jonathon Rushton here.

23/10/14

Felicity Gerry QC speaking on Human trafficking, ISIS funding and Lawyers Duties at the 5th CILS Conference in Jakarta

For further details, please click here: http://www.felicitygerry.com/felicity-gerry-qc-speaking-human-trafficking-isis-funding-lawyers-duties-5th-cils-conference-jakarta/

20/10/14

We are delighted to announce that Jessica Franses has won the Lawyer Monthly Legal Award 2014 for Art Litigation Barrister of the Year UK

For full details and to read Jessica’s Art Law Awards profile, please click here.

15/10/14

36 Employment Update – Great Britain closes in on Sweden: New rights for fathers, same sex partners, and intended parents in a surrogacy to attend 2 antenatal appointments

by Stephen Bishop, 36 Employment

Previously, it was only the expectant mother who was legally entitled to time off during working hours for the purpose of receiving antenatal care but the Children and Families Act 2014 has changed that. From 1 October 2014, those employees with a “qualifying relationship” with a woman or her expected child have a right to time off.

Do not fooled by the word “relationship”: a would–be father from a one night stand qualifies. Nor does this apply only to fathers who are married or in a Civil Partnership – same sex partners qualify, as do intended parents of a child in a surrogacy arrangement.

It will be automatically unfair to dismiss an employee for exercising these rights and therefore the 2 year qualifying period does not apply. Employees are also protected from any detriment falling short of dismissal. If the time off is unreasonably refused, an award can be made of twice the hourly rate of pay for each hour that could have been taken off.

How Much Time off:

· 2 antenatal appointments. Each can be up to 6.5 hours.

Qualifying Relationship: with either the unborn child or the mother.

· The baby’s father;

· The expectant mother’s spouse, her civil partner, or partner (of either sex) in an enduring relationship;

· Intended parents of a child in a surrogacy arrangement if they expect to be entitled to and intend to apply for a parental order in respect of that child.

Thus in some, probably rare cases, an employer may have more than one person entitled to such leave in addition to the mother if she is also employed. Equally one person could, in exceptional circumstances involving 2 expectant mothers, be entitled to time off for each mother.

Qualifying period:

· No qualifying period for employees.

· Agency workers will be entitled to the time off once they have reached the 12 week qualifying period under the Agency Workers Regulations 2010.

Employers’ right to information

An employer can request an employee to provide a signed declaration stating:

1. that the employee has a qualifying relationship with a pregnant woman or her expected child;

2. that the employee’s purpose in taking time off is to accompany a pregnant woman to an ante–natal appointment;

3. that the appointment in question is made on the advice of a registered medical practitioner, registered midwife or registered nurse; and

4. the date and time of the appointment.

An employer is not entitled to ask for any evidence of the ante–natal appointments, such as an appointment card, as this is the property of the expectant mother attending the appointment.

Tribunal Implications

· Protection from any detriment arising from the exercise of their right to the time off;

· Dismissing an employee will be automatically unfair if the principal reason is for exercising their right to time off and the normal qualifying period for unfair dismissal claims will not apply;

· If time off is unreasonably refused, an award can be made of twice the hourly rate of pay for each hour that could have been taken off.

The Department of Business Innovation & Skills have produced an employer’s guide to the new right which can be found at: 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/351413/bis-14-1063-time-off-to-accompany-a-pregnant-woman-to-ante-natal-appointments-employer-guide.pdf

 

08/10/14

Saoirse Townshend successfully acts for the Appellant where extradition is found to be both oppressive due to the passage of time and disproportionate under Article 8 ECHR

The High Court today allowed the extradition appeal of a 60–year old Polish national to face trial for two offences of obtaining a loan by deception in 2005. In 2007 the Polish Consulate in London had issued a passport to the Appellant but it wasn’t until 2012 and 2013 when the domestic warrant and then the European Arrest Warrant were issued. The Judicial Authority were found by the court to be culpable for that unexplained delay. In these circumstances, Blake J found that extradition would be both oppressive due to passage of time, and would constitute a breach of his Article 8 rights.

In Kramek v Poland, Saoirse was instructed by Leslie Franks Solicitors.

 

07/10/14

36 Crime is very pleased to announce the arrival of Grace Hale and John Hallissey

36 Crime welcomes new tenants Grace Hale and John Hallissey, previously of KCH Garden Square, who have joined Chambers with immediate effect.

All diary bookings and papers have been transferred to their 36BR diary so please contact the criminal clerks with any queries or future bookings:

T: 0207 421 8000 or email criminalclerks@36bedfordrow.co.uk 

03/10/14

Practitioners’ guide to criminal judicial review published

Criminal Judicial Review, a comprehensive guide to judicial review in the criminal justice system, has been published by Hart Publishing with a Foreword by the Rt Hon Lord Judge. Nine members of Chambers have contributed to the book including Piers von Berg (editor), Richard Wilson QC, Sarah Parkes, James McLernon, David Ball, Geoffrey Sullivan, Florence Iveson, Saoirse Townshend and Kathryn Howarth. 

                                     

                          1

The book is a comprehensive guide to challenging decisions of criminal courts and public bodies in the criminal justice system using judicial review. Written by a team of criminal and public law practitioners, it considers claims for judicial review arising in the criminal justice system, which now represent a distinct area of public law. These claims are set apart by special considerations and rules; for example, on the limits of the High Court’s jurisdiction or the availability of relief during ongoing proceedings.

Criminal practitioners may lack the background to spot public law points. Equally, public law specialists may be unfamiliar with criminal law and types of issues that arise. Criminal Judicial Review is intended as a resource for both.

The book deals with the principles, case law, remedies and, the practice and procedure for obtaining legal aid and costs. It will be of assistance to any practitioner preparing or responding to judicial review claims involving the following:

  • The Police and the Crown Prosecution Service.
  • Magistrates’ courts, the Crown Court and Coroners.
  • Prisons and the Parole Board.
  • Statutory bodies such as the Independent Police Complaints Commission and
  • the Legal Aid Agency.
  • Claimants who are children, young persons or have mental disorders.
  • The international dimension including extradition proceedings and European
  • Union law.
  • Practical considerations such as CPR Part 54, remedies, legal aid and costs.

It can be purchased from all good legal bookshops or ordered online at http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849465373. An e–book version will follow. 


02/10/14

36 Bedford Row recognised in the Legal 500

Following publication of the Legal 500 yesterday, 36 Bedford Row is delighted to have 7 QCs recognised as Leading Silks and 6 barristers in the Leading Juniors list across all of our core practice areas.

  • In Crime, 36 Bedford Row was recognised as a Leading Set, with William Harbage QC, Frances Oldham QC, Christopher Donnellan QC, Amjad Malik QC, John Lloyd–Jones QC, Adrienne Lucking QC, and Felicity Gerry QC all recommended as Leading Silks.
  • Jonathan Kirk QC and Cameron Crowe are recommended in Consumer law.
  • Will Tyler QC, Martin Kingerley and Kate Tompkins are recommended for Family and Children law, including Court of Protection.
  • John Small was recommended in Employment law.
  • In Commercial and Civil, Peter Dean and Stephen Goodfellow are recommended for Personal Injury and Clinical Negligence.

For a full overview of the set, please click here: http://www.legal500.com/firms/9439/9439

Recent News

36 Bedford Row is recruiting for Junior Clerk (Crime)
Read more

36 Employment – Holiday Pay Time Bomb?
Read more

36 Property – Illegal Immigrants in the Private Rented Sector
Read more

Felicity Gerry QC speaking on Human trafficking, ISIS funding and Lawyers Duties at the 5th CILS Conference in Jakarta
Read more

We are delighted to announce that Jessica Franses has won the Lawyer Monthly Legal Award 2014 for Art Litigation Barrister of the Year UK
Read more

36 Employment Update – Great Britain closes in on Sweden: New rights for fathers, same sex partners, and intended parents in a surrogacy to attend 2 antenatal appointments
Read more

Saoirse Townshend successfully acts for the Appellant where extradition is found to be both oppressive due to the passage of time and disproportionate under Article 8 ECHR
Read more

36 Crime is very pleased to announce the arrival of Grace Hale and John Hallissey
Read more

Practitioners’ guide to criminal judicial review published
Read more

36 Bedford Row recognised in the Legal 500
Read more