August 2018 - MLP Law

How does the development of AI (Artificial Intelligence) affect legal services?

There is an AI buzz in the air at the moment – it’s being discussed everywhere and reported on all over the media. The world is trying to work out how AI will affect their profession or business. But… what is AI and can it actually take over?

AI (Artificial Intelligence) is an area of computer science that emphasises the creation of intelligent machines that are designed to work and react like humans with things including speech recognition, thinking for themselves and learning to make decisions based on the data they are being fed, much like the human brain. Due to algorithms, AI systems and machines are now able to perform large tasks faster than humans and we see AI in everyday life with things such as Amazon‘s Alexa, Uber, Mobile Banking, Siri and self-driving cars such as Tesla. However, much of AI is still in development and with AI come questions around security amongst other things. It is not known what will come next and what problems it will solve, or indeed create.

We believe that whilst AI is changing, and shaping, the way some legal services are delivered, there’s a lot of things our clients value that AI cannot provide. AI cannot replace real people, providing bespoke and proactive advice in a way that is easily understood with no legal jargon. We, as MLP people, guide our clients on their journey, we work with them and help both individuals and businesses achieve their goals and cover all bases.

AI could help with the administrative side of law and churn out work that requires certain answers, measured on a vast scale, at speed and with accuracy but what AI can’t compete with is real people, giving real advice by way of real human interaction. As a species, we look for advice or options on complex matters, explained simply.

Currently, investing in AI is expensive, the increase in costs and training for AI is unknown, as is the speed of development and/or adaptability within different sectors. Businesses need to plan and budget ahead in terms of resource, time and money. People also want peace of mind, sound, bespoke advice and to be able to get on with their main competencies in order to achieve their goals – and that’s where MLP Flex comes in.

MLP Flex gives you access to all of our specialist teams who get to know you and understands your business journey. We work with you over the long-term and pro-actively. MLP Flex enables businesses to budget over an agreed period of time (minimum 12 months) for their legal requirements and is based on a set number of hours, at a significantly reduced hourly rate, paid monthly. This enables our clients to access the support they need without having to agree separate fees each time advice is needed. We are challenging the way legal services are delivered to enable easy access and flexibility for everyone whilst keeping our personable, human touch.

For more information on MLP Flex and understand how it can change the way you access legal services, our team would be happy to discuss this with you further. Please contact us on 0161 926 1551 or by email at Flex@mlplaw.co.uk to arrange the best time for you.

The Court of Protection

The Court of Protection frequently appears in the media, often making decisions of paramount importance for the most vulnerable in society who lack the capacity to make their own decisions in relation to their finances and welfare.

Recent examples of the variety of decisions which the Court can make includes authorising the use of invasive diagnostic tests to be carried out on Sergei and Yulia Skripal whilst unconscious; the removal of life sustaining medical treatment for a dementia patient; and the discharge of a family member as an attorney for gifting themselves large amounts of money from the incapacitated person’s funds.

There are a wide variety of decisions which the Court can make, with one of the most common being to approve the appointment of a deputy to make decisions on behalf of someone else. A deputy can be appointed to make decisions about either property and financial affairs and/or health and welfare. This blog focuses on the most common application to the Court of Protection, which is the appointment of a deputy for property and affairs. The most recent statistics show that in 2017 there were over 15,000 property and affairs deputies appointed, and these applications constituted 40% of all applications made to the Court. [1]

Court of Protection deputy applications (Property & Finances)

The most common scenario these days (particularly with an ageing population and increasing incidences of illnesses such as dementia which affect capacity) involves an elderly person losing mental capacity without having previously made an Enduring or Lasting Power of Attorney. This becomes a significant problem as there is no way of accessing the elderly person’s funds in order to pay for living expenses or the costs of care.

The only way in which finances can be accessed in this situation is to ask the Court of Protection to appoint a third party (or parties) as a deputy. This could be a trusted family member, friend or even a professional such as a solicitor or accountant. If there is no suitable candidate, or the person does not have sufficient funds to cover the costs of a professional deputy, then the Local Authority can act as a deputy of last resort. Once a Court order has been made to appoint a deputy, then the person’s finances can be accessed and financial decisions made on their behalf such as the payment of bills, the sale of property or the investment of savings.

The process of applying for a deputyship order is usually fairly straightforward, unless there is any element of dispute. The first step is to obtain evidence from a suitably qualified person such as a GP or Social Worker that the person in question does lack capacity. This requires the completion of a formal capacity assessment.

Once this has been completed the Court requires a number of documents to be filed providing a full picture of the person’s circumstances. The Court also requires other people to be notified of the application in order to ensure that there is an opportunity for any interested parties to object if they do not think the application is in the person’s best interests. Then, if the Court has no further concerns, it may make the final order appointing the deputy, who will continue to be supervised on an annual basis by the Office of the Public Guardian.

 

How can we help with Court of Protection matters?

If you wish to make an application to be appointed as a deputy it can be of considerable assistance to take advice, or even to appoint us to make the application on your behalf. As a lay person it can be difficult to understand what steps have to be taken and which evidence should be produced to a Court. We are experts in Court of Protection applications, and can help you navigate the Court procedure, leaving you reassured that the application has been dealt with correctly.

We can also act as Court appointed professional deputies in the event that there is no willing friend or family member available. As professional deputies we are expected to demonstrate a higher degree of care or skill than those acting in a lay capacity, and have to adhere to rigid professional standards, rules and ethics.

Contact us:

For more information or advice on any Court of Protection matters, please contact Kerry Blackhurst on 0161 926 1533 for a discussion based on your own personal circumstances.

[1] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/695363/family-court-stats-oct-dec-2017.pdf

Twitter Q&A

For the last two weeks, our MLP business immigration specialist has taken part in a weekly Twitter Q&A session hosted by @T2VisaJobs on a Thursday.

Aimed at international students and graduates, the sessions allowed/allow participants to ask questions about how the visa system works when individuals want to stay in the UK, to work, after graduation.

The round-up of the two Q&A sessions can be found here:

https://twitter.com/T2VisaJobs/status/1028731612987645952 and here: https://twitter.com/T2VisaJobs/status/1030475492774891520

The main theme from the sessions appears to be that there is still a lot of confusion around what routes are available, and how they operate.

So, what can you do?…

When considering options for the end of a Tier 4 visa, you should ask yourself the following questions:

  • Can I switch in-country into the new category?
  • Do I have to meet a minimum salary threshold?
  • Will my sponsor be an employer or a third party?
  • How long do I want to stay in the UK?
  • Will the new visa allow me to switch into another route at any point?

Knowing the different rules for each visa type can be tricky, as can weighing these up against personal circumstances – that’s where speaking to an expert can help you to get it right. By discussing your own personal circumstances with someone who understands the system, you can really hone down your options and spend your time more efficiently, allowing you to follow the path that suits you best, without going off track.

If your preferred option is a Tier 2 visa, you should follow @T2VisaJobs to stay alerted to the latest openings with sponsors. Another tip is to look at the register of sponsors to see if there are any employers local to you that already hold a licence. The list is updated regularly and is available here: https://www.gov.uk/government/publications/register-of-licensed-sponsors-workers.

Using the time allowed for work on your Tier 4 visa can also be extremely helpful in gaining work experience and building a network of contacts who may be able to help you or employ you, later on.

How Can we help?

At MLP we offer an initial 1-hour consultation to help you understand your options and plan for the future in the best way you can. We can offer this at a discounted rate compared to our usual hourly rates and, should you need any further assistance, we can provide you with quotes for advice that is tailored to your individual needs.

If you would like any further information please contact Charlotte Ashton, Head of Business Immigration at MLP Law – charlottea@mlplaw.co.uk

Schoolgirl awarded £16,000 in Pizza Hut sexual harassment case

A London schoolgirl has been awarded compensation by an employment tribunal in Eat London after she claimed sexual harassment.

Background

The young girl had been working at the Hornchurch branch of Pizza Hut Delivery since June 2016 when a new manager took over in February 2017.

The new manager made repeated attempts to make physical contact with the girl, including trying to hold her hand and hug her around her waist.

When his behaviour was challenged, the manager cancelled the Claimant’s shifts at short notice, found fault with her work and shouted at her.

The Employment Judge, Catrin Lewis, said that the new manager’s conduct amounted to “unwanted conduct of a sexual nature”. She added that this made the workplace environment “intimidating, hostile and humiliating” for the claimant, especially due to her age, the fact she was still in school and in her first job.

Of particular concern is that the employer failed to carry out a proper and thorough investigation into the young girl’s complaints. It did not respond to the complaints.

In her judgment Lewis said that she was satisfied that the Claimant would not have been treated in the way she was if she was a man, and that her treatment was related to her sex and rejection of her manager’s unwanted conduct.

The Claimant was awarded £13,000 for injury to feeling, along with a 15% uplift due to breaching ACAS regulations and further compensation for loss of earnings and interest.

So what does this mean?

Sexual harassment in the workplace is widespread and common. The #MeToo and #TimesUp movements have put sexual harassment at the top of the media’s agenda. Research carried out by the BBC in November 2017 found that 40% of women and 18% of men had experienced unwanted sexual behaviour in the workplace.

The issue of sexual harassment is a hot topic at the moment and it is especially prevalent in the hospitality industry. A harassment claim can be brought against individual employees personally as well as the Company.

So what can employers learn or do to prevent sexual harassment from taking place?

There is a defence available to employers if they can demonstrate that they have taken all reasonable steps to prevent harassment from occurring and therefore, they will not be liable for an individual employee’s unlawful acts.

So what reasonable steps can employers take:

  1. Have robust policies in place in relation to harassment. Make sure all managers are trained on this policy and staff are made aware that this policy exists. This policy should also extend to events held outside of the workplace, for example, a Christmas party.
  2. Provide regular training to all employees to reinforce your policy.
  3. Take a zero-tolerance approach to “banter” to prevent complaints of sexual harassment.
  4. Lead by example, especially senior management.

What if an employer is faced with a complaint of sexual harassment? Here are a few suggested actions to take:

  1. All complaints of sexual harassment should be treated seriously. Meet with the individual raising the concern and take a comprehensive note ad consider whether the individual should be offered counselling;
  2. Interview all relevant witnesses;
  3. Act in accordance with any policies you have in place;
  4. if necessary, consider suspending on full pay the employees who the allegations have been made against but take legal advice before suspending any employees.

As can be see with this case against Pizza Hut, getting it wrong can be costly. In addition to compensation being awarded, the employer no doubt had to pay significant legal costs to defend the claim and incur a large amount of management time that added no value to the business. On top of this, the reputation damage that a claim like this can cause is significant.

For more information on tribunal claims, please contact our employment team on 0161 926 9969 or by email at employment@mlplaw.co.uk.

Complaint Against Care Home Upheld By Ombudsman – Is There an Alternative Cause of Action?

A recent published decision by the Local Government and Social Care Ombudsman has highlighted some particularly unfair treatment of an elderly resident by a care home in Nottingham. It also raises the question of what other rights could be exercised in order to obtain redress.

The case relates to an elderly care home resident (Mr C) who was self-funding his choice of residential care home. Mr C had been in the care home for nearly two months, having paid a deposit and his monthly fees in advance according to the terms of the contract.

Sadly, Mr C fell and broke his hip as a result of which he needed to be admitted to hospital. Mr C’s daughter had checked with the care home that he would be able to return to the care home after his admittance and was reassured by the manager of the care home that this would be fine as long as his needs did not increase so that nursing care was required.

After a two week stay in hospital Mr C was told he could be discharged back to his care home, and that he did not have any increased needs other than needing a pressure cushion which the hospital could supply. Mr C’s daughter attempted to make the necessary arrangements at which point the manager refused to accept Mr C back. Eventually Mr C’s daughter arranged for her father to be admitted into an alternative home, as she was under pressure from the hospital to discharge Mr C.

There were conflicting versions of the events which had occurred. The manager of the care home stated that they had asked for certain documentation and reassurances from clinical staff which had not been provided, and in the meantime had been looking to place Mr C in a more suitable room. By arranging for Mr C to enter a new care home his daughter had breached the terms of the contract and accordingly would forego the return of his deposit.

Mr C’s daughter stated that the manager had been provided with all the information they needed by clinical staff, and had refused to engage with her and allow Mr C back. The manager had not told Mr C’s daughter that they were seeking to find a more suitable alternative room, and in the circumstances there was no alternative than to find a new place for Mr C to live. Mr C’s daughter felt that her father’s fees and deposit should be refunded from the time he had entered hospital.

The Ombudsman found that the evidence favoured Mr C’s daughter’s version of events and found that the care home had been at fault and caused injustice. The Ombudsman recommended that the care home should pay damages for distress and should also refund the requested fees and deposit. Unfortunately for Mr C and his daughter the care home has declined to follow the full extent of the Ombudsman’s recommendations.

Whilst pursuing a complaint with the Ombudsman is free and relatively accessible to members of the public its findings are not legally binding and, as here, can be rejected by the care provider (although this is relatively unusual).

An alternative option, rarely utilised, is to seek the assistance of well established consumer legislation. Under the Consumer Rights Act 2015, we are entitled to expect services which we pay for to be provided with reasonable care and skill, with a clear route to seeking redress if this is not the case. Mr C and his daughter could have chosen to bring the care home’s actions before the small claims court (if seeking a refund below £10,000) so that a judge could make a fully enforceable order against the care home.

Poor service should not go unchallenged, whether this is from a plumber, a car salesman or a solicitor. Far too often people do not realise that a care home’s service can also be challenged through a straightforward court process, often in a far more swift and enforceable manner than via an ombudsman.

Please do not hesitate to contact Kerry Blackhurst on 0161 926 1533 to discuss any issues which may have concerning the provision or funding of care.

Baffled by right to work checks?

During the first quarter of 2018, the Home Office handed out £7.7 million in fines to employers who were found to be employing illegal workers. In addition, there was a well-publicised case of a director being disqualified and his company put into liquidation following being fined for having employed an illegal worker.

Employers have been under an obligation to carry out checks on employees since 2008. These checks have to be done before an individual starts work and copies must be kept in a format that cannot be altered, together with a secure record of the date on which the check was carried out, for the duration of the individual’s employment and for two years after their employment has ended.

Employers are expected to check the original documents and make sure they are not “reasonably apparent” to be forgeries. This puts a great deal of pressure on employers to understand the documents they are checking and what, if any, additional checks may be required. Employers are also faced with tricky situations where there has historically been few checks made, or a TUPE transfer situation where an employer inherits a workforce that hasn’t had their documents checked.

The government provides a wealth of guidance and information but for many employers there is neither the time nor the resource to constantly keep up to date and understand what to do in tricky situations.

The most common problems experienced by employers are:

  • Knowing what to do when an employee’s visa has expired but they have submitted a new application
  • How to deal with existing staff who haven’t previously had their right to work documents checked
  • Understanding what documents show a right to work and what combinations of documents need to be seen where someone has a limited right to work
  • How to keep on top of right to work checks where someone only have a limited right to live and work in the UK

At MLP, our Business Immigration team is on hand to help you through the complex guidance and give you peace of mind that you are complying with your obligations. We can carry out right to work audits to ensure you are up to date, along with training for your staff so they feel confident they can carry out the checks that are required.

If you would like to know more about how we can help you, our team would be happy to discuss this with you further. Please contact us on 0161 820 7695 or by email to charlottea@mlplaw.co.uk.

 

Jose Mourinho v Anthony Martial and the right to paternity leave

It has been reported in the media this week that Manchester United footballer Anthony Martial is facing a £180,000 fine after being publically criticised for leaving their US tour early to attend the birth of his son in Paris.

Martial has also been criticised for failing to train since leaving the tour and not attending the club’s final two pre-season matches. Manchester United are now allegedly hitting him with a fine equating to two weeks’ salary as a result.

What are your rights as a new father?

New fathers are entitled to up to 2 weeks’ paternity leave. An employee will be eligible to receive two weeks’ paid paternity leave if they:

  • have 26 weeks’ continuous employment ending with the 15th week before the expected week of child birth;
  • are the biological father of the child or married to the partner (which includes civil partners) of the child’s mother; and
  • have or expect to have responsibility for the upbringing of the child.

Paternity leave must be completed within 56 days from the birth of the child and must be taken to care for the child or support the mother. Any rights under the employee’s contract of employment is unaffected, except in relation to pay. Statutory paternity pay which in most cases is significantly less than an employee’s normal salary, must be paid instead. Employees also have the right to return to the same job and cannot be dismissed for exercising their right to take paternity leave.

So what’s the score?

As an employee of Manchester United, Martial has the same right to paternity leave as any other employee. On a wider note, footballers are seen as role models to many young people and, as society as a whole continues to encourage new fathers to take more of an active role in the upbringing of children, José Mourinho’s public criticism of a player exercising his rights as a father will be seen as worrying and outdated by many observers.

Many will also be concerned by the fact that Martial seems to have been punished for attending his son’s birth and taking some time away from the pitch, even though at 8 days this was less than his statutory right to paternity leave.

However, as with many other things, it appears that football operates in a different world to the rest of us and it’s unlikely we will see Anthony Martial rushing to the Employment Tribunal to bring a claim.

Mourinho of all people would be well advised to respect employment rights, given that in 2016 he was personally sued for sex discrimination in an Employment Tribunal claim brought by the former Chelsea FC team doctor, Eva Cerneiro.

For more information on paternity leave, our employment team would be happy to discuss this with you in more detail. Please contact us on 0161 926 9969 or by email at employment@mlplaw.co.uk.

Retrospective sleep-in payments worth £400m put to bed

An Employment Appeal Tribunal (EAT) decision that a care worker working for Mencap was entitled to receive at least the national minimum wage for time spent sleeping at work during night shifts has been overturned by the Court of Appeal (CA) (Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad (t/a Clifton House Residential Home).

This decision comes as a huge relief for Mencap, and similar organisations, whose futures will no longer be threatened by the potential of millions of pounds’ worth of back payments. However, the decision itself does little more than emphasise that these types of cases turn on their own unique set of facts.

The facts and outcome

The CA heard two appeals against decisions made by the Employment Appeal Tribunal, both of which related to how workers should be paid for time spent asleep at work during night shifts. The CA decided that the workers in both appeals were “available for work” rather than actually working. They were therefore not entitled to be paid the national minimum wage for the whole of their shifts, but only for the time when they were actually required to be awake for the purposes of working.

What does the decision mean?

This result will be welcomed by employers in the care sector, including many local authorities, many of whom are struggling under the strain of funding cuts, but will be a disappointment to individuals working in this low-paid sector.

The case provides useful guidance for employers who engage care workers in similar situations, although uncertainty remains, not least because previous cases have decided that in some circumstances workers who are asleep can be considered to be working.

For example, in British Nursing Association v Inland Revenue, telephone helpline workers who slept between calls were held to be working for their entire shift because the work they performed at night was identical to the work carried out during the day.

This demonstrates that each case will be determined on its own facts and will ultimately depend on whether the worker is expected to sleep, be available for work or actually perform work.

If you think your business may be affected by this decision, our employment team would be happy to discuss with you further. Please contact us on 0161 926 9969 or by email at employment@mlplaw.co.uk.

Bad reviews – how to deal with them in 5 steps

“There is only one thing in life worse than being talked about, and that is not being talked about.” Oscar Wilde

In the age of social media and review sites, he may not have been so flippant. A rogue review can cause untold damage to your business reputation and finances. So, what can you do?

1. Drown out the rogue review – Contact happy customers asking them to write a positive review of their experience, to provide a more balanced overall view of your business and to push down any rogue reviews to the second or third page.

2. Deal with it head on – If you receive a bad review, don’t bury your head in the sand. If you think it would help, contact the unhappy customer directly and see if you can repair the damage. Much of the time, all customers want is an apology and, if they are open to such a gesture, you can use the opportunity to score a PR win via the review site. If such contact would only inflame matters, do not contact the customer directly but do acknowledge the review on the website and respond succinctly and fairly. Others will want to see how you handled a negative review. If you ignore it, this can cause even more damage to your brand.

3. Report the review to the review site, particularly if the reviewer has a history of negative reviews, or if they have never been a customer in the first place. This has varying degrees of success not least as many review sites are based in the US. It also takes time; self-help is much quicker.

4. Take legal action against untrue allegations. If the review crosses the line and makes allegations which are untrue rather than only giving opinion, it may be possible to take legal action against them. This starts with a ‘cease and desist letter’ from a solicitor.

5. Prevention is better than cure – Always consider the review objectively and assess if any improvements or changes might be introduced to your business to prevent any repeat bad reviews.

It can be very stressful when your business is on the wrong end of a negative review. We can work with you quickly to neutralise the effect and take action where necessary. Contact our dispute response team at MLP Law on 0161 926 9969