Settlement Agreements and Workplace Sexual Harassment, Discrimination or Bullying

Sexual harassment or bullying - no excuse for an NDA

Does a Settlement Agreement protect an employer forever? 

Many people will have signed a Settlement Agreement with their former employer which contained a non-disclosure agreement (NDA) or 'gagging clause' to protect customer information, intellectual property or trade secrets.  However, evidence is emerging that they are also being used to silence former employees to cover discriminatory and unlawful behaviour - particularly workplace sexual harassment or bullying.

Although, under the Public Interest Disclosure Act 1998 and Sections 43A to 43L and 103A of the Employment Rights Act 1996 certain disclosures qualify for protection and there is a requirement to include wording for employees that does not deter them from 'whistleblowing', that is, reporting malpractices by their employers. Section 43J(1) of the Employment Rights Act renders contractual terms void insofar as they purport to preclude the making of a protected disclosure.

When a Settlement Agreement becomes unenforceable

However, many employees do not realise that the agreement is unenforceable by the employer if it relates to workplace sexual harassment which would constitute a criminal offence and may be reluctant to report such an offence for fear of then having to repay the termination payment.

Information relating to a criminal offence is one of the categories that allows an employee to disclose certain information and any agreement that prevents this right is likely to be held invalid.

The government is currently reviewing the law to ban the use of non-disclosure agreements or confidentiality clauses that are designed to prevent employees from reporting potentially unlawful behaviour to the police.

NDAs in the news

The move follows recent press revelations that Philip Green, the retail tycoon, used NDAs in settlement agreements to silence and pay off several members of staff who accused him of sexual harassment and racism.

Although the law has long recognised that certain information cannot be confidential and subsequent case law has developed this concept to acknowledge that there are circumstances in which public policy (or interest) will override the express - or implied - duty of confidentiality owed by an employee to an employer, it is proposed to extend the current protection to non-disclosure agreements in settlement agreements so that sexual harassment, intimidation, sexual discrimination or bullying claims which may not necessarily be illegal can be reported and the employer will no longer be able to hide behind the terms of the settlement agreement where it is not in the public interest.

If you wish to discuss how any of these matters effect you, please contact Cunningtons' Employment Law specialists on 01376 326868 for help.  



Gender Equality Alive and Well at Cunningtons Solicitors

An article in today’s Law Society Gazette refers to the lack of diversity within senior law firm roles.

David Gauke (Lord Chancellor and Secretary of State for Justice) said ”It’s in senior roles and leadership that gaps appear. When we look at the senior leadership in law firms whilst women make up 59% of non-partner solicitors they account for just a third of partners.

Lady Justice Rafferty, a Court of Appeal Judge, said last week at the Royal Society Diversity Conference 'It is one thing to ensure that entry to a profession is open to everyone, to encourage diversity. It is another to maintain it as the ladder is ascended. That retention is one of the great difficulties the legal profession still has. The number of female partners in solicitors' firms, for instance, remains stubbornly low.”

The President of the Sussex Law Society set out her objectives for the coming year one of them being focussing on women in the profession and the more wider issues of diversity.

So what proportion of partners at Cunningtons Solicitors are women?

At Cunningtons LLP we are proud to be one of the few firms whose Partners are made up of 50% male Partners and 50% female Partners. Whilst internally we have not viewed this as pushing boundaries, it is quite clear that in terms of the national average we really are.

We are proud to be leading the way in the fight of diversity.                                                                                                                                                                                                                        

Bryony Wilmshurst, a  female Partner who trained at Cunningtons and has been promoted through the ranks said “Whilst I have seen colleagues at other firms struggle, at Cunningtons I can honestly say that I have never felt at a disadvantage compared with my male colleagues, there has never been a glass ceiling at Cunningtons. I am proud to be part of a diverse partnership which works extremely well due to that diversity.”

And in terms of general accessibility ...  

We are also proud of that fact that 50% of our Partners have started with the firm as Paralegals and continued training with the firm to become members. Senior Partner Jason Bradshaw, who started life with the firm as a paralegal at our Croydon branch way back in 1997 said:

“When I joined Cunningtons we had two female Partners from memory, but as the years have progressed that number has risen.  It’s always seemed perfectly natural and organic the way female solicitors have been promoted within the firm through the years, all of them wholly on merit.  Little did I know when I first stepped through the front door to the Croydon branch as an inexperienced paralegal, that I would be promoted through the ranks and eventually become the firm’s Senior Partner. It was an incredibly proud moment when I took the reins on 1 October this year.  I am very lucky to have such a talented contingent of Partners behind me as we forge ahead with plans for the future development of the firm.”



Changes in the Law for Landlords

Ignorance is no defence: landlords should be aware of changes in the law

The Deregulation Act 2015 made changes to the law for all assured shorthold tenancies granted on or after 1st October 2015. Until now, those changes were not retrospective. However, come the 1st October 2018, landlords need to be aware that the law will also apply to all assured shorthold tenancies, irrespective of when they were granted.

If you are a landlord that lets a property under an assured shorthold tenancy which pre-dates 1st October 2015 (a statutory periodic, or rolling tenancy) then you should be aware of these changes as they will affect your ability to serve notice on your tenant.

There is academic debate about how some of these changes will affect existing tenancies which were granted prior to October 2015. You may therefore want to consider entering into a new written tenancy agreement with your tenant and complying with the law now, to avoid uncertainty and risk if and when it is necessary to serve a Section 21 Notice and commence possession proceedings.

  1. The Section 21 Notice

There is a prescribed form of Section 21 Notice, which needs to be used in all cases. Failure to use this prescribed form may result in the Section 21 Notice being invalid. This in turn would mean that you would be unable to regain possession of your property unless there was a breach of the terms of the tenancy.

Whilst the law is not 100% clear on this point, there is no reason why the prescribed form should not be used and there is no benefit to not doing so.

  1. Gas safety certificate

 A landlord has to provide a tenant with a gas safety certificate within 28 days of carrying out the required safety check. It must also give a copy of a certificate to any new tenant before they take up occupation.

 A recent case (Caridon Property Ltd v Monty Shooltz [2018]) makes for unwelcome reading for a landlord. In this case, a possession claim was dismissed because the landlord had not served the certificate before the start of the tenancy. In effect, this means that the landlord would never be able to serve a valid Section 21 Notice if a certificate was not served before the tenancy started. The only way to remedy this defect would be to undertake a check and serve a certificate before entering into a new tenancy with the tenant. 

  1. Energy performance certificate

The landlord must have provided the tenant with an Energy Performance Certificate for the property. If this is not supplied then a valid Section 21 Notice cannot be served. Whilst the above case did not specifically relate to the provision of an EPC, by analogy, it may very well apply. Landlords should therefore look to ensure that they have supplied a valid EPC to their tenants.

  1. How to Rent Guide

The Ministry of Housing, Communities and Local Government have since 2015 published several versions of the “How to rent: The checklist for renting in England”. The most up to date version of this should have been served on a tenant before the start of the tenancy.

Whilst in theory the law will not require a landlord to serve this when the law changes in October 2018, it is a quick and easy step to take and landlords should get into the habit of serving this now.

  1. Retaliatory evictions

 It will no longer be possible for a landlord to serve a Section 21 Notice on a tenant instead of undertaking repair works which are required on the property. If the landlord is serve with a relevant notice to undertake works to their property, this can have the effect of preventing the service of a valid Section 21 Notice for a period of six months from the date of service of the notice.

It follows that it is important to keep any rental property in a good state of repair at all times, to avoid this issue from arising.

  1. Period of validity of Section 21 Notice

Possession proceedings must be issued within 6 months of the date the notice was served. If this deadline is missed, a new Section 21 Notice will have to be served. A Section 21 Notice will also not be valid if it was served in the first 4 months of the fixed term tenancy.

Practical guidance

A landlord’s ability to obtain possession of a property let under an assured shorthold tenancy is going to be adversely affected if they do not comply with the law.

All landlords should make sure that documents are given to tenants when they are supposed to be, and ensure that a tenant signs a document confirming that they have received them.

This can be used as evidence that the landlord has complied with their statutory obligations if and when a possession claim is required.

The above is merely a snapshot of the law in England and is not a substitute for proper legal advice.

If you are a landlord who needs guidance, please contact Cunningtons LLP Property Solicitors



If you wake up to trespassers, what can you do?

What is trespassing?

Save in some exceptional circumstances, if anyone enters onto a piece of land that does not belong to them without permission, they commit a trespass.

Trespass can occur in a number of forms, from a trespassing structure to large groups of individuals. There is no need to show that any damage has been caused and it does not matter how reasonable the trespasser believes they have been, a land owner is entitled to take action to put a stop to this trespass.

Trespassing on land is rarely a criminal offence (this is different in respect of a residential buildings). It is what is known as a tort. A tort is a civil wrong by one person against another.

However, the Police do have powers under Section 61-80 of the Criminal Justice and Public Order Act 1994 to require a trespasser to leave if

  • they believe that the trespassers intend to reside there;
  • steps have been taken to ask them to leave and damage to the land has occurred;
  • threatening or insulting words or behaviour have been used against the legal occupier of the land; 
  • or there are more than a certain number of vehicles on the land.

If there is a failure to follow this direction as soon as reasonably practicable, or if a trespasser leaves and returns within three months, a criminal offence has been committed.

In short, the Police’s powers are limited and normally only exercisable when there is damage to the property or there has been threatening behaviour.

Trespass incidents near Cambridge

On 30th August 2017, The Cambridge News reported that travellers had set up camps in various places including the car park of Bar Hill’s Tesco, Great Shelford’s Rugby Club’s field and the old St Felix School site in Newmarket, having split from a larger group. Presumably this was to avoid the provisions in the Criminal Justice and Public Order Act 1994 relating to the number of vehicles on the land.

Recent publicity surrounding the illegal traveller encampment at Witham Rugby Club is an example of how the Police are often powerless to assist a landowner. The Essex Chronicle reported on 2nd September 2017 via the EssexLive website, that a spokesman for the club had been told that there was not a lot that Police could do until an eviction notice was obtained.

How do you deal with trespassers?

In terms of the steps that a landowner can take to recover possession of their land, these include:

1. Common law eviction – This is the quickest, but not necessarily the cheapest means of removing trespassers from land. It cannot be used to remove a trespasser from residential property.

A notice normally needs to be properly served on the trespassers. If the trespassers remain after the expiry of this notice (which is generally 24-48 hours), reasonable force can then be used to remove them. However, this does not mean that the landowner is immune from any claims against him or her by the trespasser. If excessive force is used and belongings damaged, a claim, no matter how spurious, could be pursued by the trespasser against the landowner. Normally High Court Enforcement Officers are instructed to carry out a common law eviction. Their fees will depend on the circumstances and the number of travellers involved; the more officers required, the greater the cost.

A local authority will not generally use this method, as they have a duty to take into consideration the welfare of anyone on the land before evicting them. Local authorities will therefore generally follow court procedures.

2. Interim Possession order – if a trespasser is in a building, part of a building or land ancillary to a building (i.e. not on open land) then a land owner can potentially make an application to the Court for an interim possession order.

There are tight timetables to follow and the application must generally be made within 28 days of when the trespass commenced (subject to when it should reasonably have come to the landowners attention).

The benefit of an interim possession order is that the failure to comply with it is a criminal offence and that an interim, or temporary possession order will be made. However, the application generally involves two court hearings, which are normally heard quickly but not less than 3 days after the claim is issued, and there are court fees to pay. This is a good option to consider if the trespasser needs to be evicted quickly and before a final decision by a court as to whether or not a possession order should be made.

3. Standard possession claim – A standard possession claim against trespassers is normally dealt with by the courts more quickly than other trespass claims (for example, a trespass by a structure). Generally there will only be one hearing where a court will decide whether or not to make a possession order. If the deadline to make an application for an interim possession order has passed, then this is likely to be the best alternative option.

In any case of a trespass, it is important to act quickly. Not only may there be deadlines to take certain steps, on a practical level, it reduces the risk of financial loss and damage to property.

Cunningtons LLP can assist with the removal of trespassers from residential and commercial property, as well as open land. We also act for tenants and occupiers of land who may have acquired rights to remain there or have a legitimate dispute about whether or not a trespass is occurring.

This article is for information only and does not constitute legal advice.



Cunningtons conversion to LLP status

We are pleased to announce that in common with other professional services firms, Cunningtons Solicitors has converted to limited liability partnership (LLP) status. This change took effect on 1 April 2015. Please note the following information about the conversion.

What will our name be?

As from 1 April 2015 our name will be Cunningtons LLP and any reference to Cunningtons Solicitors or Cunningtons shall mean Cunningtons LLP.

Our Locations

Braintree - 01376 326868

Cunningtons LLP in Great Square and Tofts Walk in Braintree, Essex, is the head office for Cunningtons Solicitors across the UK. Established in 1748, the Braintree head office in Great Square is still in its original offices. This amounts to almost 300 years of Experience and Tradition.

The Senior Partner at Cunningtons’ Braintree office is David Drake. Paul Fenton is the Joint Managing Partner. He, along with Johanna Withams are the residential conveyancing partners at the Braintree practice. They are supported by qualified Solicitors and Licenced Conveyancers.

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Brighton & Hove: 01273 725229
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Croydon: 0208 688 8446
Ilford: 020 8553 0002
Solihull: 0121 7056868
Wickford: 01268 732268