simon jack ruth ELIYPHow to appoint a Data Protection Officer?

Blackadders Simon Allison, Jack Boyle and Ruth Weir answer a tweet from Avian Studio ‘do I need to appoint a Data Protection Officer (DPO)?’

They cover who needs it, who can be a DPO and give examples of cases.
There’s also some interesting theme tunes and a bit of the Simpsons banter thrown in!

To listen to the podcast click here; http://bit.ly/2hLIqz1

For more information on Data Protection Officers please speak to Blackadders by visiting the Blackadders website.

The latest episode of Blackadders Employment Lawyer in Your Pocket Podcast is available now!

Season 2, Episode 6: Simon Allison & Jack Boyle answer a tweet from Henderson Loggie Chartered Accountants ‘Do apprentices have different rights to employees? If so what’s the difference?’.

Jack gives us his top 3 tips whilst Simon reveals his favourite… and worst apprentice!

Click here to listen to the full podcast: http://bit.ly/2yKoMhV

For more information and help with Employment Law please visit Blackadders website: www.blackadders.co.uk

Get in touch with the Employment Law team on twitter:
@EmpLawyerSimon
@EmpLawyerJack
@EmpLawyerRich

petra farm 6The introduction of Part 10 of the Land Reform (Scotland) Act 2016 has brought, as many are aware, an improvement in the options available to a 1991 Act tenant when considering a transfer of an interest in the tenancy.

Whereas under the existing Agricultural Holdings legislation it was already an option to the tenant to transfer his interest in a 1991 Act Tenancy either on death or during his lifetime, the category of people who could benefit from such a transfer without the risk of an incontestable notice to quit from the landlord, i.e. the “near relative successor” group, was quite narrowly defined. The near relative successors, who benefit from the availability of restrictive grounds of objection available to the landlord, originally only included the surviving spouse, surviving civil partner or a natural or adopted child of the tenant. The near relative successor group was expanded in 2012 with the addition of a grandchild. Although this was a welcome step forward, it did not provide a solution to tenants who wished to retain the interest in the 1991 Act Tenancy within the wider family. Particularly where in a farming business involving a brother or sister or other close relatives where there were no children of the tenant.

As most tenants and landlords are aware, the near relative group has now been expanded to a much larger family group which includes for e.g. a parent, a son or daughter-in-law, a sibling, a sister or brother-in-law or their further offspring. This widening of the “protected” group of successors does give the tenant who is planning for succession after death or upon retirement during lifetime a much wider choice as to who may benefit after his death or retirement from his interest in the tenancy. This of course has to be looked at hand in hand with a number of other provisions in the 2016 Act such as the Amnesty provisions for Tenant’s improvements and not in the least, the provisions relating to the Relinquishing and Assignation of Holdings. The latter in general terms, allows a 1991 Act tenant to serve notice on his landlord that he will quit the holding provided the landlord pays him the compensation provided for in the Act. If the compensation is not paid or the landlord does not wish to accept the tenant’s proposal, the tenant is then free to assign his interest in the tenancy to a new entrant to farming or to an individual who is progressing in farming.

So how may this work in practice? Imagine a scenario where a 1991 Act tenant does have children, however they are not interested in continuing on the farm, nor in taking on the tenancy interest. The current tenant does however wish to secure the value of his tenancy for his own family and children. Before the 2016 Act the tenant did not have many options available to him. Unless an agreement could be reached with the Landlord, he could, as many did, continue on as a tenant on the farm until his death. If there was nobody to transfer the interest to at that point, the tenancy would most likely terminate with any available way going claims becoming available to the tenant’s estate. The real value of the interest in the tenancy, however, would be lost.

Under the 2016 Act the tenant now has a number of options. Firstly, the tenant may either upon his death or during his lifetime assign his interest in the tenancy to a family member within the wider near relative group, for example, a nephew. In Which case, the value of the tenant’s interest would be secured within the wider family. However, this does not provide for a value to be transferred to the tenant’s own children. We need to consider whether in such a scenario, the payment of a premium by the proposed new tenant is an option. I don’t see why it could not be. As such we would effectively see a “sale” of the 1991 Act tenancy interest, thus providing for a value to be made available to the original 1991 Act tenant and his own family, children etc. Secondly, the tenant may decide to retire and make use of the relinquishment and assignation provisions. Again this would secure for the tenant either a compensation payment by the landlord or payment of a premium by the new entrant or individual progressing in farming who is to receive the benefit of an assignation of the lease.

It does not take much imagination to envisage the creation of a market in 1991 Act tenancies available for assignation. Whether this would result in increased availability of tenancies to new entrants remains to be seen.

We are seeing increased activity from Landlords with a rise in the number of discussions taking place between Landlords and Tenants on a possible relinquishment of the tenancy. This of course before the relevant provisions are in force in law and no doubt in anticipation thereof.

It is important, now perhaps more than ever, for tenant farmers to carefully consider their succession planning, this hand in hand with the opportunities offered for increased value as a result of the Amnesty provisions in relation to tenant’s improvements. When considering options careful consideration needs to be given to the effect any actions proposed may have on the tenant’s Inheritance Tax position and other applicable taxes and more particularly the effect of retirement or transfer on the available Business Property and Agricultural Property Reliefs available.

For more information on land transactions and tenancies please contact the Rural Land and Business team at Blackadders.

Parking - Richard godden blog. PexelA lot of people think that if you park your car in a private car park owned by, for example, the local supermarket or a big hotel, and you get a penalty ticket due to overstaying, or not being a customer, you don’t have to pay it. “Only the state can fine people”, they say, “and since when is Morrison’s the state?”

You may also hear: “There’s no law of trespass in Scotland. I can’t charge you £85 just because you walked into my front garden, can I?” Or: “If this is legal, what’s to stop them charging you a million pounds?” So the advice about the penalty ticket is – bin it. But is that correct?

Normally a matter as trivial as an £85 parking ticket would barely make it to the Sheriff Court, and we would be left guessing what the law on the matter might be. But, extraordinarily, a case deciding this very point went all the way to the Supreme Court in 2015, and the judgment makes for interesting reading.

The case concerns a Mr Beavis, who left his car in the car park attached to the Riverside Retail Park in Chelmsford. There were about 20 signs at the entrance to the car park and at frequent intervals inside it, all large and prominent, so that any reasonable user of the car park would have had a fair opportunity to read them. The wording, mostly in black print on an orange background, was:

“2 hours maximum stay. Failure to comply with the following will result in a Parking Charge of £85. Parking limited to 2 hours (no return within 1 hour).”

The court held that this amounted to a contract between Mr Beavis and the car park. Mr Beavis had permission to park his car in terms of the notice posted at the entrance, which he accepted by entering the site. He was well aware of the terms when he parked, or ought to have been aware of them. Those terms were that he would stay for not more than two hours, and that if he overstayed he would pay £85.

Mr Beavis’ solicitors accepted that there was a contract, but argued that the £85 charge fell foul of a well-established rule that “penalty clauses” in contracts are unenforceable.  These are clauses in contracts which say that in the event of a breach, the defaulting party will pay some exorbitant amount of money to the other party, out of all proportion to any loss which can have been suffered.  The car park, they said, had not suffered any loss at all in reality, so the purported charge was simply intended as a punishment, and was an unenforceable penalty.

The Supreme Court disagreed. They thought that it was perfectly reasonable for the car park to discourage inconsiderate motorists from occupying parking spaces for too long, thereby reducing the space available to other members of the public. Also, the charges were necessary so that the car park could make a profit and be able to stay open. In these circumstances the car park had a legitimate interest in imposing the £85 penalty, and this was the only reasonably practicable way to enforce its interests. £85 was not out of the way in all the circumstances, bearing in mind the usual level of penalties imposed by traffic wardens on public streets.

So, Mr Beavis had to pay up. Fortunately for him, this was a test case for the car parking industry and it had been agreed that there would be no cost implications for him in taking the case to the Supreme Court, or it would have been the most expensive parking ticket in history.

In April this year a similar case appeared in the humbler surroundings of Dundee Sheriff Court. In this case a Ms Mackie persistently parked in a private car park outside a relative’s house. Signs showing the parking terms and warning her of the penalties for overstaying were displayed prominently. She ignored the signs and binned the penalty notices as she received them, eventually racking up a total of £18,500 in penalties. Sheriff George Way found her liable to pay the car park this sum, on the same reasoning as the Beavis case.

The correct legal position is therefore that if you drive to a private car park where the terms and conditions are clearly displayed along with a warning of the penalty charges, and you park there, you may be agreeing to those charges. So long as the penalty charge is not unreasonable, the likelihood is that will be liable to pay it.

Of course, the situation would be different if the terms and conditions of parking were not clearly displayed, or if the penalty were a ridiculously huge sum. Also, intriguing legal arguments could still spring up in other circumstances over whether a landowner has a “legitimate interest” in imposing a penalty on trespassers. However, in most cases, it seems that if you get a private parking ticket the “just bin it” advice is not good.

For more information or advise on this, contact the Dispute Resolution team at Blackadders.

Simon Allison & Jack Boyle answer a tweet from Insights: ‘Can employers insist on male employees being clean shaven? What about tattoos?’

Click here to listen to the full podcast: http://bit.ly/2gmY7ff

Are you a business owner or manager that needs advice? Why not speak to Blackadders’ Employment Law team today! For more information visit: www.blackadders.co.uk

Don’t forget to subscribe to the podcast on iTunes and follow us on twitter on: @EmpLawyerSimon @EmpLawyerJack @EmpLawyerRich @BlackaddersLLP

For those of us still hooked on the TV show, “The Apprentice”, you are bound to have noticed that nothing invokes the scorn of Lord Sugar more than when candidates describe their goods or services with a dash of creative licence.

Whether it be organic burgers that aren’t so organic or French mussels which are more at home in Brighton than Brittany there is a real legal reason why Lord Sugar has to come down hard when candidates push the truth a little too far.

The primary legislation governing this area is called the Consumer Rights Act 2015 and this lays out the various rights consumers in Britain enjoy when buying goods and services. When it comes to the description of goods, the law requires that every contract is deemed to have an implied term that the goods will match the description given by the seller. It doesn’t matter if the goods were available for inspection or if the seller later amends the description; if the original description is false then the buyer has certain legal rights.

In general these rights entitle a consumer who has been mis-sold a product to either reject the goods (subject to certain time-scales); obtain repair or replacement of the goods; or, have the purchase price reduced to reflect the mis-description.

The law further protects consumers by presuming that any mis-description discovered by the consumer within 6 months from when the goods were delivered existed at the time when the product was originally bought and it is up to the seller to prove otherwise.

In addition to these civil legal rights that consumers enjoy, Trading Standards Officers also have the power to bring quasi-criminal proceedings against those who have deliberately or recklessly mis-sold goods and services. Accordingly, it is hardly surprising that Lord Sugar keeps a careful eye on the activities of his candidates and hopefully this reinforces the point that mis-selling goods is no light matter.

If you have been mis-sold goods or services or have any questions arising from the contents of this blog please contact our Dispute Resolution Team who will be happy to assist you.

The UK’s Government has again been busy creating new corporate crimes to help enforce its policy objectives.

This time it relates to tax evasion, or more accurately “failure to prevent the facilitation of tax evasion”. Two new offences came into force on 30 September 2017 in the Criminal Finances Act 2017 – one for UK tax evasion and one for foreign tax evasion. As the HM Revenue & Customs (HMRC) press release says: “It is already a crime to evade tax, or deliberately help another person to do so, but on behalf of the majority of taxpayers who pay what is due, the UK government is taking an even firmer stance on corporate fraud in a move designed to drive a change in corporate culture.” Much like anti-bribery and corruption rules your company’s defence is to prove you have reasonable prevention procedures in place. HMRC has provided guidance on this, which this blog summarises for you.

Who is this relevant for?

All companies and partnerships in all industries will need to put some prevention procedures in place. Higher risk sectors e.g. accountancy, tax advice, wealth management and legal services will need to do more.

What are the offences?

There’s three parts: (1) a taxpayer commits criminal tax evasion, (2) a person who is acting on behalf of your company or partnership commits an offence by “deliberately and dishonestly” helping the taxpayer evade tax (“facilitation”), and (3) the company failed to take reasonable steps to prevent this criminal facilitation. Part (3) is the corporate offence and the only part that’s new. For the UK tax evasion offence the company or its business could be based abroad. For the foreign tax evasion offence only the company, its business or some of its staff needs to be based in the UK. It doesn’t matter whether the senior management / board were aware of the facilitation or not.

What’s tax evasion (illegal) and what’s tax avoidance (legal)?

This is not an easy question as the line is increasingly blurred but the HMRC guidance provides some examples of criminal facilitation of tax evasion:

· A mid-size car parts maker operating in the UK and Europe, entered into a sub-contracting arrangement with an UK distributor. The senior managers of the UK distributor created a false invoicing scheme with the assistance of a purchaser, allowing the purchaser to evade UK taxes due on its purchase of the car parts in the UK.

· As part of a large transaction an employee of a UK-based multinational bank knowingly referred a corporate client to an offshore accounting firm with the express intention of assisting the corporate client to set up a structure allowing the client to evade foreign income tax.

Existing procedures won’t cut it

Companies and partnerships who operate in the UK or deal with UK tax will need to put in place yet more compliance procedures – HMRC is very clear that your existing anti-bribery and corruption, fraud prevention or financial crime prevention procedures (if applicable) will help but aren’t enough on their own.

So what do you need to do?

According to HMRC guidance every company and partnership needs to firstly undertake a risk assessment of the products and services it offers, as well as internal systems and client data that might be used to facilitate tax evasion. This includes “sitting at the desk” of employees and other associated persons, considering the motive, means and opportunity for facilitating tax evasion. When doing this you should consider typical fraud “red flags”, for example:

Are there staff who refuse to take leave and do not allow anyone else to review their files, or are overtly defensive over client relationships?
Do existing processes ensure that for higher risk activity at least a sample of files are routinely reviewed by a second pair of eyes?
Then consider tailoring existing processes and procedures accordingly to prevent and detect potential tax evasion facilitation – this could include:

Having a commitment to preventing the involvement of those acting on your behalf in the criminal facilitation of tax evasion, demonstrated by issuing a prominent message from the board of directors, partners or leadership team against all forms of tax evasion;

  • Having terms in contracts with employees and contractors requiring them not to engage in facilitating tax evasion and to report and concerns immediately;
  • Providing regular training for staff on preventing the facilitation of tax evasion;
  • Having clear whistle-blowing procedures;
  • Ensure your pay and bonus policy/structure encourages reporting and discourages pursuing profit to the point of condoning tax evasion;
  • Having regular reviews of the effectiveness of prevention procedures and refining them where necessary; and
  • Monitoring and enforcing compliance with prevention procedures.

These are merely the basics for SMEs and need to be tailored to the organisation’s specific risks. Larger or higher risk companies and partnerships will need to do more on top of this to comply but may have guidance from their sector regulator to help them.

When do we need to do this?

HMRC is expecting you to be doing your risk assessments and initial staff communications now and to have a clear timeframe for putting the other procedures in place.

Getting help

For more information or help with complying contact the Corporate Team at Blackadders. Thanks to Sara Scott, our Regulation & Compliance Manager for input to this article.

Blackadders LLP Employment team Partner Simon Allison and Associate Solicitor Jack Boyle have recently produced the first episode of Season 2 of Employment Lawyer in your Pocket: ‘How to be a good witness?’

In the episode, Simon and Jack answer a tweet from Fairways HR asking what makes a credible & reliable witness?

Listen to the podcast here: http://bit.ly/2hPMpy3

From Blackadders LLP, about their Employment Lawyer in your Pocket podcast:

We’re aiming to help managers and business owners navigate the murky and often contentious world of employment law and keep on the straight and narrow with their staff.

In season 1, Simon and the team discuss the eight essential steps which an employer must take when looking to fairly dismiss an employee.

In season 2, Simon and the team answers questions which have been tweeted by listeners. How To Be A Good Witness? How To Give A Reference? And many, many more.

You can follow the award-winning employment team on twitter @EmpLawyerSimon @EmpLawyerJack and @EmpLawyerRich

You can also tweet us any questions using the #ELiYP hashtag.

Bear Payne.

This is the name the media and fans have been eagerly awaiting on following the much anticipated arrival of Cheryl and Liam Payne’s baby boy in March. I remember agonising over baby name books trying to decide what to name our children and Bear’s arrival brought me back to the time when I became a new parent and my life changed forever.

Becoming a parent is an exciting if not hectic time and it takes a while to adjust to the lack of sleep, constant feeding and changing nappies! Being a parent brings an enormous responsibility to care for your children during their lifetime, but there is also a responsibility to care for your children should you no longer be around.

The Childhood Bereavement Network estimated that in 2015, 23,600 parents died in the UK, leaving an estimated 41,000 dependent children aged 0-17. Where does that leave them?

So whether you are a brand shiny new parent like Cheryl and Liam or a more experienced, but utterly exhausted parent with young and demanding children (I fall into the latter category!), now is an ideal time to think about putting your affairs in order to ensure that your children are cared for by the person or people of your choice and that financial provisions are in place should anything unforeseen happen.

The answer is simple – make a Will.

In this document you can appoint a guardian who would be responsible for your children’s welfare should you not be around and set out the financial provisions determining when your children will receive their inheritance.

As a parent, appointing a guardian is probably the most important thing parents with young children need to consider. You may wish to consider a family member such as your own parents or a sibling, but if the grandparents are elderly or perhaps there are no or unsuitable siblings, you may wish to consider appointing a friend or friends of a similar age to you or perhaps even younger.

Often a couple are considered rather than two unrelated individuals. The person(s) you choose would take over your legal rights and responsibilities so it is vital you are comfortable with your choice! It would of course be prudent to discuss matters with the person(s) to ensure that they would accept such an appointment prior to making your Will.

If you do not appoint a guardian in your Will, it is left to the courts to decide. This will result in a time consuming and costly process which is obviously stressful for those involved. It would be cheaper, quicker and easier for everyone if a guardian was appointed so staying away from court procedure altogether.

With regards to financial provision, you can, in your Will, set out how much of your estate your children will inherit and at what age. The age of legal capacity in Scotland is 16 and most people feel this is far too young for their children to inherit a potentially large sum of money. If there is no Will in place or your Will does not specify an age to inherit, then your children will receive funds at 16 years old..

To avoid this, trust provisions should be considered and included in your Will. Inclusion of a trust will set out the age that you wish your children to inherit, usually 18, 21 or 25. The trust can be flexible to allow the advancement of both income and capital before that age, to assist with ongoing costs including education, if thought suitable by the trustees you have appointed in your Will. It would be sensible to have at least three trustees so that there is a majority and the trustees do not have to be the same individuals that you have appointed as guardians.

Your Will should be reviewed when your family circumstances change and having children is an ideal time to put your affairs in order and make/update your Will. It will only take a few hours of your time to make a straightforward Will, but it could make all the difference to your children’s future. Once in place, you can then go back to the hardest but most rewarding job in the world!