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JANUARY 2008 |
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This material will shortly be available at our web-site (www.russell-cooke.co.uk) together with an archive of past updates. PROPERTY - Modifying restrictive covenants – another way?Many property owners will be familiar with the idea of covenants which bind land, and effectively restrict future development. It is often considered that in the absence of co-operation from the holder of the benefit of such covenants, the only option is to apply to the Lands Tribunal for the covenant to be lifted or amended. The Tribunal’s right to do this is restricted to certain statutory grounds. A recent case has reminded lawyers of an often overlooked provision in the Housing Act 1985 which might be of assistance to their clients. The Housing Act 1985 provides that where planning permission has been granted to convert a single dwelling into two or more dwellings, then, if such conversion would be prevented by a restrictive covenant, the court can amend such restriction on whatever terms it thinks just. The Court of Appeal, in reviewing the decision of the county court judge in that recent case, emphasised that a court should take into account all the relevant factors, including those which the relevant planning authority has already considered. The Court of Appeal held that the decisive factor was ‘…the urgent demand for more housing in London’. As this is clearly a longstanding and widespread problem for London, one can only anticipate that further similar applications to vary restrictive covenants will be made shortly. Lawntown v Camenzuli For further information, please contact:
EMPLOYMENT - Casual WorkersHow great are the dangers of casual workers being found to be employees with full rights? Casual status continues to create risks unless the implications of your particular situation are well understood. In recent years court decisions appear to have moved away from identifying an “umbrella” contract if a casual is only paid when work is available and not obliged to accept work or the organisation to offer work when there is none (Carmichael v National Power). However the case of Cornwall County Council v Prater concerned a teacher who had accepted a succession of short-term assignments as a tutor. The local authority employer was not obliged to offer further assignments and the teacher was not obliged to accept them. The Court of Appeal upheld the finding of the EAT that she was nevertheless employed. The absence of mutuality of obligation before and after the completion of the short-term contract did not prevent the contracts constituting employment. Moreover she was to be treated as continuously employed, any gaps in employment between the contracts being disregarded on the basis that she was absent from work on account of a temporary cessation of work. The case was distinguished from Carmichael v National Power which did not address the status of the Claimants when they were working as guides but held there could be no umbrella employment contract in the absence of mutuality of obligation. Carmichael v National Power Plc [2000] IRLR 43, HL In a recent case the EAT held that although an employer did not have to provide work for a casual worker and she could either cancel the session offered or arrange for another casual to cover in her place, once she turned up to work for a session she was bound to do the work personally and was therefore employed under a contract of employment. North Wales Probation Area v Edwards UKEAT/0468/07 In another recent case the EAT considered the definition of a worker under the National Minimum Wage Act 1998. The case concerned the status of a courier who the Tribunal had held was neither a “worker” nor a “home worker.” The EAT held the fact that no mutuality of obligation exists between periods of work does not exclude the individual from being a worker or an employee during the periods of work and that the concept of “home worker” does not require the individual to work in a fixed place and can include a delivery driver. In considering whether a person is carrying on a business i.e. self-employed a Tribunal should consider whether personal service is the dominant purpose of the contract. The power to delegate work if the individual is on holiday or “unable” to work is consistent with a contract for personal performance but delegation if the individual is “unable or unwilling” is not. The case highlights the difficult distinctions between self-employed and employed or worker status. James v Redcats (Brands) Limited [2007] IRLR 296 For further information, please contact:
THE CHAIR’S CASTING VOTERather strangely, the Companies Act 2006 brought in provisions which said that a resolution could not be passed at an AGM or other general meeting using the Chair’s casting vote. A number of companies moved to amend their articles to reflect this, but there was a great deal of unhappiness at the change and it has now been announced that, provided that there were provisions in your articles before 1 October 2007 allowing a casting vote for the Chair, it will be permissible for the Chair to continue to cast a casting vote. For organisations who took out the provisions allowing a casting vote, they can be reinstated. However, for all new companies, there can be no casting vote for the Chair even where the articles allow a casting vote. (Sections 28.1(3) and 28(2))A Chair is still permitted to have a casting vote at board meetings, if the articles allow this. Para 2(5) of the 5th Schedule to the Fifth Commencement Order inserting 23(a) into Schedule 3, the Third Commencement Order, Para 23(a) Further information, please contact:
EVENTS
Programme of Evening Seminars 2007/2008 Wednesday 27 February 2008 Tuesday 11 March 2008 Wednesday 2 April 2008 Tuesday 22 April 2008 Wednesday 14 May 2008 For booking information please contact: JANEV DJEMIL on 020 8394 6372. janev.djemil@russell-cooke.co.uk The Trustee Conference 2008 – Thursday 26 June 2008 For more details and for booking information please follow this link: http://www.russell-cooke.co.uk/serv_c&o_charities_events.htm
The Charity Team
This material does not give a full statement of the law. It is intended for guidance only, and is not a substitute for professional advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be accepted by Russell-Cooke. Copyright: Russell-Cooke, January 2008 To subscribe to this monthly legal update please visit http://www.russell-cooke.co.uk/serv_charities_intro.htm and fill in the online request form, or send an email including your name and email to, charitylegalupdates@russell-cooke.co.uk An archive of past updates can be found at http://www.russell-cooke.co.uk/serv_charities_updates.htm If you would like to reproduce some or all of our updates in your own publication, contact KATE SLATTERY on 020 8394 6458, kate.slattery@russell-cooke.co.uk
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