| Quick Links | Kent SolicitorsLatest legal news from Kent Solicitors, Kaslers Solicitors LLP.Monday, 28 November 2011Part 36 Offer – time limitationsA recent Court of Appeal decision has clarified the issue of whether or not a Part 36 can be time limited. In C v D [2011] EWCA Civ 646 the claimant purported to make a Part 36 offer to settle a dispute. However, he specified that the offer was only open for acceptance for 21 days. The offer was not withdrawn by the Claimant and the Defendant decided to accept the offer outside of the 21 day period. The Court of Appeal considered whether the offer lapsed after 21 days or whether the Claimant simply intended the offer not to be withdrawn for 21 days. It found that a part 36 Offer cannot be time limited. The offer lies on the table until formally withdrawn. In this instance the 21 day limitation period was to be read as meaning that the offer would not be withdrawn within the 21 days. The Defendant was free to accept the offer. Care should be taken to formally “withdraw” any Part 36 Offer that is no longer open for acceptance. Labels: acceptance, limitation, offer, Part 36, period, time Wednesday, 23 November 2011Employment law changesThere could be at least 3 major changes to the way in which employer / employee disputes are managed 1. An employer may be able to have a 'protected conversation', with an employee about performance / on-going employment, without the employer fearing that his words will be used against him a constructive dismissal claim 2. There may be fees for bringing employment tribunal claims 3. The unfair dismissal qualifying period may go up from one year to two years with effect from April 2012 Michael Breeze, Solicitor tel. 0845 270 2511Labels: constructive, conversation, dismissal, employee, Employer, protected, qualifying period, unfair Monday, 21 November 2011Employed or “Self-employed” ?
The Southampton Employment Tribunal has found at a pre hearing review (PHR) that a ‘self-employed’ independent financial adviser (IFA) was an employee.
Key to the Tribunal’s decision in Johnson-Caswell v MJB (Partnership) Ltd was the level of control the employer exerted over the IFA in order to ensure compliance with FSA rules. When Johnson-Caswell’s contract was terminated he lodged several claims including a claim for unfair dismissal. At the PHR it was held that MJB Ltd exercised a ‘sufficient degree of control’ and the ‘control’ test laid down in the Ready Mix concrete case was met, thus Johnson-Caswell was held to be an employee. That the control was exercised in order to meet the firm’s FSA obligations was irrelevant and the test was met despite Johnson-Caswell’s autonomy in determining how he worked and charged his clients. This is a first instance decision but it is likely to cause concern to firms who are FSA regulated and may well impact on other regulated industries. Call Vanessa Wheeler 07852 658 865 or email vjw@kaslers.co.uk Labels: employed, self employed
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The LLP Members are Michael D Breeze LL.B (Hons) (SRA reg no 110184) and Simon McCree Scott LL.B (Hons) (SRA reg no 298202).