Occupation agreements must be read together to construe correct meaning

Justin Barker, PartnerThe Landlord and Tenant Act 1954 gives commercial tenants the right to have a new commercial tenancy in appropriate circumstances, thus giving them security of tenure in normal circumstances except where the landlord requires the property for its own purposes.

However, to be protected, the premises must be occupied by the tenant for the purposes of a business carried on by it. All of these criteria are necessary.

Recently, the warden of a caravan park (who was the employee of the local council) applied for a tenancy under the Act. The council had offered him an ‘operator agreement’ to operate the park for two years and a part-time contract of service as an employee to provide the security for the site. It also gave him a ‘bungalow agreement’ (which was a residential lease) on the bungalow on the site in order to better perform his services as an employee.

The employee applied for a tenancy under the LTA, arguing that he carried on the business of running the caravan park. He contended that the annual payment he was required to make to the council under the operator agreement was rent and that he carried all the commercial risk (the payment not being linked to the profitability of the caravan park). This pointed to him operating the caravan park on his own account.

However, the operator agreement had other clauses which pointed to the warden being the agent for the council. For example, the agreement specified the service standards he must apply in certain areas (such as emptying bins). It also gave the council the right to veto certain decisions he might make and specified the accounts he must prepare and submit to the council.

The court reached the conclusion that, taken as a whole, the agreements meant the warden managed the caravan park as agent for the council and was not therefore entitled to a lease over it.

For more information about all Landlord and Tenant issues, contact Justin Barker on 020 8221 8000 or e-mail justin.barker@bowlinglaw.co.uk.

HS2: How it may affect your property

Peter Laskey, PartnerNow that approval for the ‘HS2’ high-speed train line between London and Birmingham has been formally announced, the next exercise the Government will be undertaking is a review of the property interests affected by the scheme.

Maps of the proposed routes can be found here.

In addition to properties that will need to be compulsorily purchased, many affected by construction works in building the train line. Later on, there will also be issues relating to the sonic footprint the trains will create and loss of visual amenity. The degree of visual blight will be relatively easy to predict. The degree of blight due to noise less so.

A review of all the property issues can be downloaded below. This summaries the current statutory position as regards compensation for blight due to the scheme. The Government intends to bring in adjustments including: 

• a streamlined advance purchase scheme;
• a sale and rent back scheme;
• a streamlined small claims scheme; and
• a package of measures to improve confidence in properties above tunnels.

Click here to download the Government's review on how properties may be affected.

If you are concerned about the effect HS2 will have on a property you own, contact Peter Laskey on 020 8221 8000 or e-mail peter.laskey@bowlinglaw.co.uk to arrange a confidential discussion.

TUPE does apply to 'pre-pack' adminstration

Dinesh Raja, Managing PartnerRegulation 8(7) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) provides that where the transferor is the subject of bankruptcy proceedings or any analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor and are under the supervision of an insolvency practitioner, the transfer provisions of TUPE do not apply. In such circumstances, employees do not automatically transfer to the new owner and any dismissals are not automatically unfair.

There had been uncertainty as to the exact interpretation of ‘analogous insolvency proceedings’ but the Court of Appeal has now ruled (Key2Law (Surrey) LLP v De’Antiquis) that the exception does not apply to administration proceedings under Schedule B1 of the Insolvency Act 1986.

In the Court’s view, an administration is not outside the TUPE rules because it cannot be said to have been ‘instituted with a view to liquidation’ of the company’s assets. The primary statutory objective of an administrator when appointed is to rescue the company as a going concern, even though this may subsequently prove to be impossible. Accordingly, the Court held that a transfer of liabilities under TUPE will take place where a company is placed into administration and the business is subsequently transferred, as is the case with so called ‘pre-pack’ administrations. The approach adv ocated in the 2009 case of Oakland v Wellswood (Yorkshire) Ltd.), whereby the decision as to whether the TUPE provisions apply will depend on the intention of the administrator regarding the transfer of the insolvent business, was judged to be inappropriate in such circumstances. 

Subject to any appeal, this decision means that the employment rights of employees will be protected when a company is sold following a pre-pack administration.

We can advise you to ensure that any decision regarding the sale or purchase of a business is made after consideration of all the relevant factors. For more information contact Dinesh Raja, Managing Partner on 020 8221 8000 or e-mail dinesh.raja@bowlinglaw.co.uk.

Rock musician's fiancee applies for provision from estate

Ali Ebrahim, ConsultantThe fiancée of Rock Musician Gerry Rafferty, who died in 2011, is to apply to the court for financial provision to be made for her out of his estate.

Under the Inheritance (Provision for Family and Dependants) Act 1975, a person who is dependent on another person who dies leaving insufficient financial provision for them in their will can apply to the court for an order requiring that ‘reasonable financial provision’ is made.

Rafferty had a will, which he made shortly before he met Enzina Fuschini. They became engaged in 2009. He never changed his will.

He left an estate valued at more than £1 million, mainly based on royalties from his several hits in his own name, such as the rock classic ‘Baker Street’, and also from those with Stealers Wheel. 

If you are dependent on a person who dies leaving inadequate provision for you in their will, then contact us to see if a claim against their estate may be made. For more information contact Ali Ebrahim, Consultant on 020 8221 8000 or e-mail ali.ebrahim@bowlinglaw.co.uk.

An introduction to Workplace Mediation

Peter Holland, PartnerDisputes in the workplace are regrettably a common occurrence and can have many different causes. Attempts should always be made by all parties involved in the dispute to resolve the matter as quickly as possible, as disharmony in the workplace can have far-reaching consequences. However, discussion and consultation between employees and their managers is not always effective in resolving disputes and mediation may be needed to bring the matter to a conclusion.

Mediation is a form of Alternative Dispute Resolution. When a dispute is mediated, an independent mediator is appointed to listen to the account of the dispute from the point of view of all parties involved. Mediation is confidential and must be entered into voluntarily by all parties. It is not the job of the mediator to decide right and wrong, but to listen to the varying points of view and to ensure that everyone involved fully understands the reasons behind the dispute and is aware of their options with regard to its resolution. The main aims of mediation are to reach an agreement acceptable to all parties and to restore the relationship between them.

Mediation is often most beneficial when carried out early on in the dispute, before relationships have time to deteriorate and the prospect of finding a mutually agreeable solution to the problem becomes less likely.

Employers should have an easily accessible policy detailing how grievances in the workplace will be dealt with, and should highlight mediation as an option when discussions between the parties have failed.

There are many workplace disputes which may be suitable for mediation. These include harassment issues, issues relating to pension rights, holiday pay, non-payment of wages and issues relating to withdrawal of employee benefits.

The cost of mediation varies (and will be agreed in advance) but is likely to be significantly less than that of arguing a case before an Employment Tribunal (ET). An employee’s right to take the matter to an ET will not be affected because he or she has refused to take part in mediation, or if attempts to resolve the dispute through the course of mediation have failed.

Workplace disputes can effect performance, may have a detrimental effect on the health of those involved and can lead to the breakdown of working relationships. The sooner a matter can be discussed and resolved, the more likely it is that a conclusion satisfactory to all parties will be reached.

If you face a workplace dispute, consider making use of mediation before the positions of the parties become entrenched. Peter Holland is a qualified mediator and can advise on whether mediation might be a suitable method of solving a workplace dispute. To contact Peter, telephone 020 8221 8000 or e-mail peter.holland@bowlinglaw.co.uk.