Hedges Breakfast Briefing:Property and Business

19 November 2015

Toby Walker

Head of Dispute Resolution

Case Law Update

Right to light: injunction or damages?

Scott v Aimiuwu

Scott v Aimiuwu Answer? No injunction, damages of £31,499 instead

1. oppressive and punitive2. “secondary” accommodation

3. planning permission and expert advice

4. 50% of light just a rule of thumb

Scott v Aimiuwu

Developers: take advice & avoid primary accom.

Adjoining owners: consider urgent injunction?

CONCLUSIONS

Housing and Planning Bill 2015

Recovering abandoned premises

HMOs

Tackling 'rogue' landlords and letting agents

Rogue Landlords

Database

LHAs can apply for banning orders

Rent repayment orders

Recovering abandoned premises

Reinstatement

Notice

HMO LicencesNEW FITNESS TEST = Appropriate skills + Do not pose a risk to the health and safety +Entitled to remain in UK +Not be insolvent or bankrupt

Financial Penalties

as an alternative to prosecution for certain offences

ALEXIA WHITE

Residential Property, Farms and EstatesOxford

Housing and Planning Bill 2015

Planning Planning Everywhere

Facts and Figures from the Planning and Housing Bill

200,000 New Homes

20,000 New Homes in Oxfordshire

Between 2001 – 2016: 6500 New Homes built in Oxford

CASE STUDIES

MISREPRESENTATION

PARTY A PARTY B

THORP AND ANOTHER v ABBOTS AND ANOTHER

ORIENTFIELD HOLDING LTD v BIRD & BIRD LLP

SYKES v TAYLOR-ROSE

A Brief Guide to the Agricultural Wages Order (and upcoming changes)

Chris AnnettsAgricultural Solicitor

What We’ll Cover

• History of the AWO• Abolition• Why still relevant?• Contracting out/varying • Pay (and changes)• Sick pay• Holiday (and changes)

History of the AWO

• Agricultural Wages Board (AWB) regulated farm workers’ wages under the Agricultural Wages Act 1948

• Historically, agricultural wages have been slightly higher than minimum rates

• Used to have new Agricultural Wages Orders each year (most recent was AWO 2012)

• AWB abolished as of 1 October 2013, and so we no longer have new AWO’s each October

Why Abolished?• AWB was abolished in

England by coalition government on 25 June 2013

• Most recent AWO from Oct ‘12 to Sept ’13

• Not right for farm workers to have special protection over and beyond other sectors

So Why is the AWO Still Relevant?

• Relevant to farm workers employed before 1 October 2013 as it still governs their employment terms

• An employer may not vary employment terms without consent

• This would be a breach of contract = Employment Tribunal Claim

Contracting Out• It’s possible to contract an

employee out of the AWO ’12

• Employee must consent to changes

• Can hold meetings and consult

• May involve compromising

So to Summarise So Far…

Agricultural workers employed before 1 October 2013 = AWO terms apply (unless agreed to contract out)

Non-agricultural workers, or agricultural workers employed after 1 October 2013 = AWO terms do not apply

What are the Main Enhanced Terms?

There are many differences between the AWO and non-AWO terms, but the main ones are:• Minimum rates of pay;• Sick pay; and• Holiday pay

Pay – Non-AWO• Rates of pay dictated by National Minimum

Wage

• Increases every October

• Minimum wage depends on age

• From 1 October 2015 rates are:

o Under 18 – £3.87o 18 to 20 – £5.30o 21 and over - £6.70

Pay - AWO

1. Initial grade2. Standard worker3. Lead worker4. Craft grade5. Supervisory grade6. Farm Manager grade

• Minimum pay under the AWO ‘12 is much more complicated

• Is not based on age, but on “grade”

• 6 grades depending on seniority

Pay – AWO (continued)Grade Description Hourly Pay Overtime Pay

1 of compulsory school age

Initial grade £3.11 £4.67

1 above compulsory school age

Initial grade £6.21 £9.32

2 Standard worker £6.96 £10.44

3 Lead worker £7.66 £11.49

4 Craft grade £8.21 £12.32

5 Supervisory grade £8.70 £13.05

6 Farm management grade

£9.40 £14.10

Pay – AWO (continued)Most usual is a Grade 2 (standard worker), as this is a person who either :• Works unsupervised;• Works with animals;• Uses powered machinery; • Drives a tractor; or• Has a certain agricultural qualification

• Minimum pay under AWO ’12 for Grade 2 was £6.96 per hour, and £10.44 overtime

2010 2011 2012 2013 2014 2015£5.40

£5.60

£5.80

£6.00

£6.20

£6.40

£6.60

£6.80

£7.00

£7.20

NMWAWO

So, NMW is catching up with AWO:

Pay – What’s Changing?• National Living Wage

• Being introduced April 2016

• Increases minimum wage for over 25 year olds

• Increased to £7.20 per hour

• Exceeds grade 2 minimum rates

Sick Pay – Non-AWO• Statutory Sick Pay (“SSP”) applies

• Or contractual sick pay

• Current SSP rate is £88.45 per week for up to 28 weeks

• Employee needs to be off for 4 days to qualify

• 3 “waiting days”, SSP commences on 4th day

Sick Pay - AWO• AWSP = far more generous than SSP

• Needs 1 year’s service to qualify

• Paid unless suffers injury outside of work

• AWSP does not = full pay

• Is based on pay grade, so for grade 2 worker is paid at £6.96 per hour

• Duration depends on length of service – up to 26 weeks

Holiday – Non-AWO• Workers in the UK are entitled to a minimum

of 5.6 weeks’ holiday per year• This includes bank holidays

• = 28 days’ holiday per year for a 5-day per week worker

Holiday - AWO• Under AWO holiday entitlement is slightly more

generous• Based on how many days employee works each

week (but not multiplied by 5.6)

• A 5-day a week worker is entitled to a minimum of 31 days’ holiday…

• …3 more days than non-AWO workers

Holiday – What’s Changing?• Calculating overtime in holiday pay has changed

• 3 types of overtime:

1. Guaranteed overtime2. Non-guaranteed overtime3. Voluntary overtime

• Calculate average pay over previous 12 weeks

• Used to be thought that only guaranteed overtime should be included

Holiday – What’s Changing?• However, this all changed in case of Bear Scotland

• This case held that holiday pay should also include “non-guaranteed overtime”

• Should therefore include overtime not guaranteed in contract, but that employee is expected to work if offered

• Consequences:1. Holiday pay will increase if non-guaranteed over time offered2. More holiday pay if worker takes holiday after a busy period3. Employees can pursue employers for shortfall in holiday pay (up to 2

years)

ConclusionWhen dealing with agricultural workers:

• First thing to do is find out when they started work for their employer

• If pre-Oct ‘13 then AWO unless varied

• If post-Oct ‘13 then normal terms

• Also check that they don’t work in Wales – easy assumption to make that they work in England

• Bear in mind, these are minimum terms. Employers can give more (wages, sick pay, holiday), but not less

• Even if covered by AWO, consider increases to NMW and NLW each year

A Round Up: other interesting developments from the world of

property!

Vicky HernandezHead of Property

The Creative Foundation v Dreamland Leisure Ltd and others [2015] EWHC 2556 (Ch)

• FRI lease inc. structure and exterior

• Alterations require landlord’s consent

• Repair or Alteration?

• Whose ownership?

Conditions on purchase of ex-council house

Section 157(1) of the Housing Act 1985 allows councils to impose restrictions on the future sale of homes bought under the right to buy regime if the property is in:

• A National Park

• An area designated as an area of outstanding beauty

• An area designated by the Secretary of State as a rural area

Local Government OmbudsmanAugust 2015

• Main residence

• No tenancies

• Prohibition against company sale

What are the implications?

Notices to Complete

Hakimzay Ltd v Swailes [2015] EWHC B14 (Ch).)

The Best of the Rest!• Changes to CDM Regulations• Smoke and Carbon Monoxide Regulations• Small Business, Enterprise and

Employment Act 2015 Regulations• Right to rent to apply to whole of England

from 1 February 2016