Dismissing an employee for persistent and unfounded complaints is still victimisation

Victimisation after Multiple Grievances/Claims

Although we don’t provide employment law advice any longer, this is a salutary warning for all employers.

This is reproduced from the Employment Bulletin of Daniel Barnett -Employment law barrister. For more information on Daniel’s services go to http://www.danielbarnett.co.uk

The facts of this case are interesting and many employers will have some sympathy for the employers in this situation. The ratio – that victimisation claims don’t require a comparator – doesn’t really give the true picture. Here are the facts…

Mr Woodhouse is black. Over a period of four years, he lodged ten internal grievances alleging race discrimination. Separately, he brought seven employment tribunal claims against his employer. They were almost all found to be “empty allegations without any proper evidential basis or grounds for his suspicion”.

The employer eventually dismissed him, because of a breakdown in trust and confidence. The employment tribunal held this was not victimisation, because the employer would similarly have dismissed any employee (irrespective of race) who had brought a similar number of meritless grievances and claims.

That was wrong, held the EAT in Woodhouse v West North West Homes Leeds. The grievances and tribunal claims were ‘protected acts’. He was dismissed because he made those protected acts. There was no suggestion of bad faith (which would have prevented the grievances amounting to protected acts). Since he was dismissed for making protected acts, his victimisation claim was made out.

It’s undoubtedly the right decision from a legal perspective, no matter how unfair it may appear to the employer. In the absence of bad faith, this case provides that an employer cannot dismiss an employee who makes serial but misguided complaints of (any sort of) discrimination.

Is your property at risk of flooding?

Many properties are now at risk of flooding. Insurance for flood damage is going to become increasingly expensive and difficult to obtain. Lack of such insurance may make a property unsaleable

Please note that we do not have the expertise to advise on whether or not a property is at risk of flooding. You should take advice from your surveyor or other environmental expert. The purpose of this note is merely to highlight the risk

We set out below an extract from recent guidance issued by the Law Society

1. Flooding risks

The Environment Agency estimates that one in six homes in England (approximately 5.2m properties) are at risk from flooding. Of these, 1.4m are at risk from rivers or the sea alone, 2.8m are at risk from surface water alone and 1m are at risk from both. An estimated 200 homes are at risk of complete loss to coastal erosion over the next 20 years or so, and 2,000 more could potentially become at risk over this period
It may not always be obvious that a property is at risk of flooding. Properties at risk do not need to be close to a river or the sea or on low lying ground to be exposed to flood risk. Surface water, groundwater and overflowing sewers are increasingly common causes of flooding.

The most common types of flooding are:
• Surface water flooding – occurs when heavy rainfall overwhelms the drainage capacity of an area.
• Sewer flooding – occurs when sewers are overwhelmed by heavy rainfall or when they become blocked.
• Groundwater flooding – occurs when underground water levels rise above surface level. This is most likely to occur in low lying areas underlain by permeable rocks.
• River flooding – occurs when a watercourse cannot cope with the water draining into it from the surrounding land.
• Coastal flooding – results from a combination of high tides, low lying land and, sometimes, stormy conditions.
While this note is primarily concerned with the issue of flood risk in the context of the purchase, lending on, or leasing of property, flood risk has the potential to impact on all those owning or occupying property.
If the government and the Association of British Insurers have not negotiated measures to take effect in place of the Statement of Principles before 1 August 2013, or have not agreed to extend its application, when the current statement expires the insurance market is likely to change adversely for properties perceived to be at risk of flood events. Even if agreement is reached it may not benefit commercial property.

2. Where can you find more information

The main ways of learning more about the risk of flooding are:
• conducting searches
• making enquiries of the seller
• instructing a valuer or surveyor to carry out physical inspection, survey or valuation generally and to provide advice on the impact of flood risk
It may not be sufficient to rely on the results of any one category of investigation alone.
Different clients, including lenders, will have different appetites for risk.
You should consider advising your clients before they enter into a binding commitment to buy, lease or finance property that they should:
• Establish the terms on which buildings insurance, including flood risk cover, is available.
• Discuss the level of risk to which the property is exposed with their building surveyor or, if necessary, a flood risk assessment consultant.
Where appropriate you should discuss with your client whether they are instigating their own investigations. As a result you may wish to make further enquiries of a commercial company. You may wish to record these discussions and your clients’ decisions.

3. Specialist surveys

Your client may wish to commission a specialist survey of the land to be acquired to provide further information in relation to flood risk. The following organisations may be able to assist in providing suitably qualified professionals:
• Royal Institution of Chartered Surveyors (RICS)
• Association of Building Engineers
• Chartered Institution of Civil Engineers
• Chartered Institution of Water and Environmental Management
A flood risk survey, in addition to providing information about the likely risk of flood, can provide information about steps that can be taken to mitigate exposure to flood damage. It may also analyse the efficacy of existing flood mitigation measures.
The Flood Risk Report has been developed by government and industry. It is a standard template for recording flood risk before and after the installation of flood resistance and resilience measures.
Provided that a suitably qualified and independent professional surveyor has completed the report, it may be useful for your clients to provide it to their prospective insurers. Insurers may consider any flood protection measures when assessing the terms they will offer.

4. Buildings insurance

Some insurers may have investigated the insurance risk by collating data sets in order to evaluate the terms on which they are willing to insure against flood risk. Encouraging your client to investigate the terms on which insurance is available from a number of different insurers can contribute to their assessment of the likely level of flood risk.
Even if the property is leasehold and the landlord insures, if flood becomes an uninsured risk, the tenant may be liable to make good any flood damage depending on the wording of the lease.
The Law Society Standard Conditions of Sale (fifth edition) oblige the buyer to assume the risk from exchange of contracts. You should discuss the liability to insure with the buyer if appropriate.
For leasehold properties the responsibility may lie with the landlord. For freehold properties it is likely to be the responsibility of the buyer. You should consider advising the buyer to investigate the terms on which buildings insurance is available for all risks, including flood, prior to being committed to the purchase.
Where a property is perceived to be at risk of flooding, insurers may decline to insure, require high premiums, impose high excesses or impose unusual conditions. The British Insurers Brokers Association may be able to assist in locating specialist brokers if your clients encounter difficulties.
The Department for the Environment, Food and Rural Affairs have produced a guide, ‘Obtaining flood insurance in high risk areas’, for those experiencing difficulty in obtaining flood insurance.
Clients who are buying and encounter difficulties in obtaining insurance on usual terms will be on notice of the risks and may not wish to proceed at all, or at the same price, as a result. They may not be able to proceed, even if they wish to, if this prevents their being able to obtain suitable mortgage finance.

5. Other sources of information•

The Environment Agency – Flood Map and other flood protection resources
• Land Registry flood risk indicator
• RICS: A clear guide to flooding for property owners
• The Flood and Water Management Act 2010
• (The Water Industry (Scheme for Adoption of Private Sewers) Regulations 2011)[http://www.legislation.gov.uk/ukdsi/2011/9780111510933/contents “The Water Industry (Scheme for Adoption of Private Sewers 2011”)
• National Flood and Coastal Erosion Risk Management Strategy
• The National Flood Forum’s Blue Pages Directory
• Flood Protection Association
• Know Your Flood Risk

What makes a house, a ‘farm house’ – and get tax relief?

HMRC have issued new guidance on what qualifies as a farm house for the purposes of Agricultural Property Relief following the 2011 decision in Golding v HMRC

Where a property qualifies for Agricultural Property Relief (‘APR’) its value is not taken into account when deciding the value of a deceased’s estate for Inheritance Tax Purposes.

Golding v HMRC [2011] UKFTT 351 (TC) March 2011

HMRC had refused to allow APR on the deceased’s farmhouse claiming it was not agricultural property and that the house was not of a character appropriate to the agricultural land owned by the deceased.
The First Tier Tax Tribunal decided the property did qualify for APR. They held HMRC couldn’t argue that the house was not a ‘farmhouse’ under IHTA84/S115(2), so the case was heard on character appropriate grounds only.

Facts of the case
The deceased’s father purchased the farm, which comprised 16.29 acres, for him in 1940. He had worked there all his life, bringing up two children. The farm remained unchanged at the time of the deceased’s death in 2007.
The farm comprised a mixture of free range chickens, cattle, milk, wheat, barley, oats, fruit and vegetables. The farming operations where scaled back from 1985 onwards. In the period before his death the deceased only kept 70 hens and sold eggs from the farmhouse, to his regular customers until his death.
The Tribunal found that the lack of profit was not detrimental to a decision that the farmhouse was of a character appropriate to the land and highlighted the deceased was making a profit, though relatively small. It therefore qualified for APR.

Each case will always be decided on its own merits. This case though may be useful to farmers who have substantially scaled back their activities in later life.

Further guidance on what does or does not qualify for APR can be found on the HMRC website

Do you want to turn your humble house into a mighty mansion?

New rules on home house extensions

A raft of measures granting new permitted development rights in England – including those for rear-of-house extensions – will come into force on 30 May.
Communities Secretary Eric Pickles said the measures would ensure the very best use is made of empty and underused buildings, to provide much needed homes and businesses.
The measures include increasing the size of single-storey rear extensions which can be built under permitted development for a period of three years between 30 May 2013 and 30 May 2016. These larger extensions will be subject to a ‘light-touch’ neighbour consultation scheme.