Retirement Age Of 65 To Stay... For Now

Transcription

1 Retirement Age Of 65 T Stay... Fr Nw The High Curt has recently ruled n the validity f a cmpulsry retirement age f 65 under UK age discriminatin legislatin The Emplyment Equality (Age) Regulatins 2006 ( The Age Regulatins ) came int frce n 1 Octber They were intrduced t further implement the EU Equal Treatment Directive which prhibits discriminatin n the grunds f sex, race, age, disability, sexual rientatin, religin r belief. The Age Regulatins give emplyers the right t cmpel staff t retire at 65, prvided that a designated prcedure is fllwed. The Heyday Grup (nw part f Age UK) submitted a claim fr judicial review t challenge this aspect f the Age Regulatins n the basis that it amunted t age discriminatin which culd nt be justified. The High Curt Judge (Mr Justice Blake) dismissed Heyday s claim and stated that a cmpulsry retirement age was permitted by the Equal Treatment Directive and that it was nt a disprprtinate means f the gvernment seeking t achieve its scial plicy aims f labur market cnfidence and wrkfrce planning. Hwever, it is clear frm the judge s cmments in this case that he fund sme f the submissins made by Heyday fr a retirement age f mre than 65 t be adpted persuasive, in part due t the change in culture in recent years arising frm peple wrking fr lnger as a result f an ageing ppulatin. It appears that a deciding factr fr the curt was that a review f the cmpulsry retirement age is due t take place in At the mment, emplyers can in mst cases therefre lawfully terminate emplyees wh reach the age f 65. Hwever, in rder t avid a finding f unfair dismissal r age discriminatin, emplyers must fllw the crrect prcedure. This wuld include ensuring that they ntify emplyees at least 6 mnths (but n mre than 12 mnths) befre they reach their intended retirement date f their right t request t cntinuing wrking beynd that date. Clearly this is an issue which will cntinue t be the subject f much debate and, given the gvernment review due t take place in 2010, a retirement age f 70 culd be lming ver the hrizn. If yu wuld like any further advice n these matters r t discuss hw The Age Regulatins culd affect yur plicies, prcedures and practice in the wrkplace, please cntact Fudia Smartt n r her at fudia.smartt@russell-cke.c.uk

2 Unfair Terms In Cnsumer Cntracts Recently bth the UK banking industry as a whle and Fxtns estate agents have been subject t curt prceedings brught by the Office f Fair Trading ( OFT ) under the Unfair Terms in Cnsumer Cntract Regulatins ( the Regulatins ). Any business which deals with cnsumers shuld be aware f the Regulatins. When d the Regulatins apply, what d they say, and what shuld businesses be ding? When d the Regulatins apply? Bradly, the Regulatins apply where any business is dealing with cnsumers n standard terms f business. The Regulatins will nt apply t the cre terms f the cntract, prvided that thse terms are in clear, intelligible language. Equally, they d nt apply t the price f gds r services r the quality f the gds r services received fr that price (but the Sale f Gds Acts will apply). What d the Regulatins say? All written terms must be in plain, intelligible language. If there is any ambiguity in a term (i.e. if there are tw r mre pssible meanings) then the interpretatin mst favurable t the cnsumer will apply. Any term which is unfair will nt be binding n the cnsumer. There are als prvisins allwing the OFT t investigate unfair cntracts and apply fr injunctins t prevent their cntinued use. S what is an unfair term? The Regulatins state that a term will be unfair if it creates a significant imbalance in the rights and bligatins f the parties t the detriment f the cnsumer. This is nt particularly helpful - it effectively says that a term will be unfair if it is unfair. Hwever the Regulatins d cntain a useful list f examples f unfair terms including: binding a cnsumer int a cntract where the business has a chice as t whether r nt t perfrm its bligatins; giving the business rights t terminate the cntract withut prviding similar rights t the custmer; allwing the business t unilaterally vary the gds r services t be prvided; allwing fr a cnsumer depsit t be frfeit if the cntract is terminated by the business. What shuld businesses dealing with cnsumers be ding? Make sure yur terms are in clear plain English. Ensure that yur terms are readily available t custmers, and prvided t yur custmers befre a cntract is entered int.

3 Any terms which a cnsumer might bject t shuld be clearly identified (and preferably highlighted). Cnsider each f yur terms frm the pint f view f yur custmer. If yu think that the term might be unfair, cnsider whether yu really need t include it. If yu d, then check the term with yur lcal trading standards ffice, r speak t a slicitr. If yu wuld like any further advice n these matters, please cntact Guy Wilmt n r him at guy.wilmt@russell-cke.c.uk Effective Debt Recvery The current ecnmic dwnturn has led t an increase in unpaid invices and bad debt with inevitable implicatins fr cash flw. Many businesses are nt sure f the best way t try and recver the utstanding debt. This article sets ut sme f the ptins available. Preventing and limiting bad debts arising The easiest way t limit bad debt is t have gd terms and cnditins that clearly set ut the payment bligatins and t have tight credit cntrl. In particular, yu shuld cnsider: Asking fr a depsit prir t the gds/services being prvided. Prviding in yur terms and cnditins fr payment f interest n verdue invices, and/r that title in the gds supplied remains with yu until full payment f sums due (a retentin f title clause). Seeking sme frm f guarantee r ther security in apprpriate cases. In the event that a debt becmes a bad debt, prmpt actin must be taken t maximise the pssibility f recvery. This may invlve putting in place an internal prcedure t fllw up late payers by phne r letter. Yu shuld als cnsider whether r nt the debtr is gd fr the mney. If they d nt have the mney t pay yu, there may be little purpse in incurring further time and mney pursuing them. Optins fr legal actin There are a number f ways in which a creditr can pursue a debtr fr a debt, each f which is explred in turn belw. A. Pre-actin letter and Curt actin Prir t issuing prceedings, yu must send the debtr a letter befre actin setting ut the basis f yur claim and allw the debtr a minimum f 14 days t prvide a respnse. The Curt rules encurage the parties t any ptential claim t seek t reslve their dispute by negtiatin, mediatin r sme ther means.

4 Any claim will either take place in the High Curt (if it is fr mre than 50,000) r the Cunty Curt. Claims f 5,000 r less are called small claims. They have a simplified prcedure fr litigants in persn. As a general rule legal expenses are nt recverable but a successful litigant in persn can recver their Curt fees, the reasnable expenses f a party r witness including their travel and vernight expenses, their lss f earnings (limited t 50 per persn) and expert fees (limited t 200). Claims f ver 5,000 have a mre frmal prcedure. A prprtin f yur legal expenses may be recverable as described belw. Yu can ask the Curt t enter judgment against the debtr at an early stage in the prceedings if the debtr des nt respnd t yur claim r if yu can persuade the Curt that there is n prspect f the defence succeeding. There are Curt frms available detailing the prcedure. If a defence is filed, the Curt will prvide directins fr the future cnduct f yur claim thrugh t trial and may encurage yu t seek t reslve the claim thrugh mediatin. If yu prceed t trial and are successful then the Curt may rder that yu recver a prprtin f yur legal csts against the debtr. Yu wuld nrmally expect t recver between 50 70% f yur ttal csts. Hwever, if unsuccessful yu may be required t pay a prprtin f the defendant s csts, as well as yur wn csts. If judgment is btained against the debtr and he still des nt pay, there are a number f enfrcement ptins available t yu. Yu need t be sure the debtr has sufficient assets t pay bth the judgment sum and any csts rder. B. Statutry Demand A Statutry Demand can be served n an individual r a cmpany. It is the first stage t winding up a cmpany r making an individual bankrupt n the basis that a failure t satisfy a Statutry Demand is evidence that the cmpany/individual is unable t pay debts as they fall due. A Statutry Demand is in a standard and prescribed frm which is relatively straightfrward t cmplete. It requires n reference t the Curt befre it is served n the debtr. The frm sets ut details f the amunt wed and requires the debtr t pay the amunt wing within 21 days. They can be used if there is a clear and undisputed debt f mre than 750. If an individual debtr disputes the amunt wing they may make an applicatin t Curt t have the Statutry Demand set aside. A cmpany debtr can apply t the Curt fr an injunctin t prevent a winding up petitin being issued r prceeded with. In either case, if the debtr is successful and the Curt decides that there is a genuine dispute, the Curt is likely t rder that yu pay the debtr s csts f the applicatin. If the debtr fails t cmply with a Statutry Demand, then the creditr is entitled t present a bankruptcy petitin (in the case f an individual debtr) r a winding up

5 petitin (in the case f a cmpany debtr). This is an expensive prcess and there are a number f disbursements that yu are required t pay. If a bankruptcy rder is made, yur debt will be ne f the unsecured debts f the bankrupt and will nt be priritised (althugh the csts yu incur in btaining the bankruptcy rder will be). Yu will recver the same prprtin f yur debt as all ther unsecured creditrs in due curse - therefre it may nt be in yur interests t be the petitining creditr and incur the expenses referred t abve. C. Mediatin Mediatin shuld be cnsidered as alternative r in additin t issuing prceedings in cases where the debt is disputed. Mediatin is a prcess by which a third party is appinted t assist the parties negtiate a settlement. A mediatr is nt a judge and des nt make any decisin abut the merits f the case. Mediatin may enable yu t retain an element f gdwill fr the future and keep csts dwn and may result in a swift reslutin t yur dispute. The Curt has made it clear that, in sme cases, if yu avid mediatin then yu may be penalised in csts even if yu are ultimately successful at trial. If yu wuld like any further advice n these matters, please cntact Jenny Raymnd n r her at jenny.raymnd@russell-cke.c.uk Csts Of Litigatin Litigatin has a reputatin fr being expensive but that desn t have t be the case. We recgnise that businesses can be severely affected by the csts f pursuing r defending claims. The purpse f this article is t explain a bit mre abut hw csts wrk and hw t ensure that yur business gets value fr mney. Wh pays the csts? The general presumptin is that the unsuccessful party t a claim pays the successful party s csts. Withut prper advice n yur prspects f success at the utset f a dispute, r withut prper representatin in nging prceedings, yu may nt nly lse yur case, but yu may als be liable fr the ther side s csts. On the ther hand, if yu are prperly advised and are successful in yur case, yu will als be able t recver the majrity f the csts yu have incurred. Csts recvery Hwever, it must be brne in mind that generally the successful party will nt recver all f the csts they have incurred. The curt typically assesses csts n the standard basis which usually results in the successful party being awarded between 60% and 70% f their actual csts. In extreme and unusual situatins the curt can rder that csts be assessed

6 n the indemnity basis; fr example when ne party has acted unreasnably in the cnduct f the case. As such, it is bviusly imprtant t keep csts manageable and prprtinate thrughut any dispute. At Russell-Cke we ensure that ur clients are fully aware f any csts they have incurred by prviding a detailed estimate f csts at the utset f litigatin and discussing fees and expenses with clients n an nging basis. Funding Previus articles have discussed in detail the varius funding ptins available t Russell- Cke clients. These may include cnditinal fee agreements, fixed fees and deferred fee agreements. If yu need any advice in relatin t a dispute, r have any queries in relatin t this article please cntact Pal Sidli in ur litigatin team n r him at pal.sidli@russell-cke.c.uk This material des nt give a full statement f the law. It is intended fr guidance nly and is nt a substitute fr prfessinal advice. N respnsibility fr lss ccasined as a result f any persn acting r refraining frm acting can be accepted by Russell-Cke LLP. Russell-Cke LLP March