Member Blog

John Gostling, Breakwater IT’s Managing Director, shares some simple steps that will protect your business from cyber-attacks.

It has become an undeniable truth, particularly over the past year with an increasing number of high-profile attacks; that, when armed with enough resolve, skill and financial resource, there are individuals and cybercrime groups that can and will access your systems.

But you can take some simple preventative measures to reduce the chance of a security breach by hack or ransomware attack. Much like you close your windows, lock your doors and set the alarm when you leave your house; you can fortify the protection surrounding your IT systems. We have to up our game and raise awareness of the threats – sometimes an all-too-simple click on the wrong link can leave you vulnerable, this way we can stop making it easy for people to steal our business information and money.

Train your employees

Your employees are your biggest asset, your biggest cost centre and, unfortunately, your biggest IT security risk. I have seen many outbreaks of ransomware over the past few years and every single one of them could have been prevented if the staff member had a better understand of how to spot a specially crafted email or an authentic-looking web page that coerced them into clicking on a link to something bad. Of course, they didn’t know it was bad, they just thought that Microsoft wanted to help them, that the HMRC wanted to give them a refund for £512.37 or that someone had just used their Paypal account.

If they are not clicking on links, they are sending £8,000 to an unknown bank account because someone pretended they were the CEO of that company and asked the finance team to just transfer the money.

There are so many, regrettably, simple ways of a cyber-attacker gaining your trust and ultimately your money – I have heard examples of businesses receiving emails from supposed clients requesting that they transfer £15,000 to a new bank account. In this case the email had been hacked, and it only took a few persuasive messages under the guise of an important “client”, and the money had been transferred to an unknown bank account.

We can all fall for these tricks, through no fault of our own, but with the right education and by making some noise around how these attackers coax their way in, you can help your employees to become more aware – then it’s suddenly much less likely they will click on the bad stuff. Of course, knowledge does not make your network impenetrable and mistakes happen, that’s when reinforced IT systems and best practice come in to play.

Close down entry points

Much like a bank, home or office – for someone to steal your possessions they need to access the building. To do this they use entry points such as doors or windows. Your IT system is much the same, data comes in and out of your network via entry points, over the web, in email and via devices such as USB drives and CDs.

So, the next obvious step in protecting your business, is to secure these entry points to your IT network. Email and web traffic can be filtered and analysed to stop the bad stuff coming through; known bad places on the web are automatically blocked, so even if a damaging link does find its way in, your employees cannot click through.

USB pen drives – we all have them, but stop and think for a moment. Do you know enough about the machines your USB has been used on and what it might be distributing throughout your business. The web is much quicker than it used to be and there are so many more tools for transferring files that you really shouldn’t need to use these any more.

Get Cyber Security accredited

This is a basic government scheme that encourages you to cover the essentials of IT security and make changes to your system to help keep you protected. It’s a self-certificate scheme, (you can go all out for the plus version!) and it can be completed in a couple of weeks and only costs £300+VAT for complete certification and peace of mind. As an added bonus they chuck in some free cyber insurance on the back of it.

Have an awesome backup…..and check it EVERY DAY!

Seriously, this is your last resort. When all of the above fails you’re going to need something to fall back on. Get yourself a good backup system, get a DR system if you cannot afford to be offline for long. Check it’s backing up regularly and run some test restores. No ifs, no buts, it’s just not acceptable to not have a good backup in this modern age of cheap online storage and there are some amazing providers out there with reliable solutions to get you back up and running.

Discover how Breakwater can help your business. Call our team today on +44 (0)1603 709300 or email [email protected]

Recently I was at a conference where the speaker talked about the importance of ‘trust’ in employee engagement. His message was that managers who trust their employees benefit from better relationships.

This is undoubtedly true. It has been my experience that when employees are trusted to deliver, they are happier, more productive, more engaged, and more inspired to come up with ideas and new ways of working.  Trust leads to empowerment and when we empower people, they thrive.

And this trust can be tangibly demonstrated in many ways. It is in the way a manager focuses on outcomes rather than input, concerned with what the employee delivers, rather than getting hung up on the how. It is giving the employee freedom to work flexibly, recognising that the individual is competent enough to effectively manage their workload. It is giving the employee access to resources, appreciating that the individual is unlikely to take advantage.

I am reminded of, many years ago, working for an employer who had a blanket ban on Facebook. The thinking clearly being that if employees had access to social media, then we would spend excessive time updating our statuses, posting selfies, and liking posts. Which seemed grossly unfair and belittling; as if the workforce was incapable of prioritising work above all else. It was a very parent-child decision which indeed diminished the employees’ responsibility and accountability.

And yet, I can, to some degree, see where the employer was coming from. Because, after all, trust is something which human beings struggle with; we often talk about people having to ‘earn our trust.’ Which is understandable; we can all speak of experiences when trust has been broken. But isn’t it better to start from a position of trusting our employees first and deal with breakdowns on an as and when basis?

To do this, I believe that companies need some key elements. They need policies, processes and procedures which give enough freedom for the employee to make their own decisions. They need communications and engagement activities which give choice, influence, and ownership; a company shouldn’t just ‘do’ to an employee, the employee needs to be given a say and some element of control. They need leaders who are honest, authentic, consistent and who engage regularly with the people. They need confident managers, managers who understand their remit and role, and are not there simply to be directive. And there needs to be a culture where challenge is positively encouraged – and where it’s ok to make mistakes. Because sometimes things will go wrong, trust will be broken, and in an empowered, engaged and trusting workplace, that’s ok.

If employers demonstrably trust their people, they will see better results, increased satisfaction and greater engagement. Which can only help companies to prosper. 

Mental health and wellbeing is an issue which touches every corner of society. This year, a report by Business in the Community suggested that three in five (60%) employees have experienced a mental health problem due to work, or where work was a contributing factor. This World Mental Health Day, we look at why mental health in the workplace matters (with the help of a lot of statistics!) and what a modern employer can do to help. What’s the issue? Poor mental health has a negative effect on both individuals and businesses, so as an employer it is important to keep an eye on the mental wellbeing of your staff. Poor mental health can lead to increased short term absences, high turnover of staff and decreased productivity. In addition, almost one in three (31%) employees have been formally diagnosed with a mental health issue. Where an employee’s poor mental health amounts to a disability, their employer may have to make adjustments to their employment or physical surroundings (where it would be reasonable to do so). It is therefore in the best interests of both employers and employees to help ensure employees’ mental wellbeing is safeguarded. What can employers do? It is important to have an open dialogue about mental health concerns. Only 53% of employees feel comfortable talking about mental health issues at work, and only 11% of those who have suffered from a mental health issue have disclosed it to their line manager. This is perhaps unsurprising given that 15% of employees who disclosed a mental health issue to a line manager say that they then became subject to disciplinary procedures, dismissal or demotion. Modern employers should encourage employees to come forward with issues which are causing stress or concerns at an early stage. This will allow managers to assess the scale of the problem, offer support to the employee if appropriate, make changes if appropriate, or offer additional training. Employees should be reassured that they will not be subject to disciplinary procedures as a result of declaring a mental health issue (and, legally, should not be so subject!). Employees taking intermittent short-term absences from work can be disruptive to an employer’s business. When an employee takes time off due to mental health issues, communication is key. Employers may consider altering the requirement for employees to call in when they are off sick, instead offering email or text as a temporary option if it helps to overcome a boundary faced by an employee with a mental health problem. Equally, setting parameters for updates and communication is crucial – too little is just as bad as too often! Back-to-work meetings can be a helpful tool to assist those who may be struggling with their mental health and open up lines of dialogue. Where absences are more long term, employers should attempt to keep lines of dialogue open. Offering support to employees whilst they are on a long-term sickness absence may help encourage them back to work and will also help the employer establish whether a disability has developed. This is important, as in some circumstances there is a duty on employers to make reasonable adjustments for disabled employees. It is also important that managers know how to tackle the issue of mental health absences and the conversations surrounding them. Training is therefore a key part of taking a proactive approach to mental health in the workplace. Whilst 84% of managers agree that the mental wellbeing of employees is their responsibility, only 24% of managers have received any training in mental health. What are the benefits? In short: happy, productive staff who aren’t suing you! Taking a positive, proactive approach to mental health in the workplace can help reduce staff turnover, reduce the amount of work days lost to sick leave and ultimately make your business more productive and profitable. It also has huge reputational benefits and puts you a step on the road to truly being a “modern employer”. If you would like more information on the content of this article and how you can take a proactive stance on mental health in the workplace, please call our Employment Team on 01603 281153. Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

The 10th of October 2017 is World Mental Health Day, a time to promote good mental health for all and reduce the stigma associated with mental health conditions. The focus this year is on managing mental health in the workplace. 

Mental Health conditions affects 1 in 6 adults in the workplace

Mental health is everyone’s business. 1 in 4 adults will be currently experiencing a common mental health condition. 1 in 6 of us will be experiencing this in the workplace. Whether we feel comfortable talking about it or not, stress, anxiety and depression is something that none of us are immune to, so let’s start to talk about it. 

The cost of poor mental health to individuals and businesses is substantial. Mental illness affects people’s lives. It can interfere with our ability to maintain good relationships, carry out normal day to day tasks and affects our performance at work and our overall enjoyment in life. 

Mental Health in the UK and the cost to business 

The OECD estimates the cost of mental health to the UK economy to be £70 billion per year, equating to 4.5% of GDP. Mental ill health, alongside muscular skeletal problems are the leading causes of sickness absence in the UK and mental illness is on the increase. 15.2 million days of sickness absence in 2013 were caused by everyday conditions such as stress anxiety or depression – a dramatic increase from 11.8 million days in 2010. Mental ill health costs on average £1035 per employee, costing UK employers £26 billion each year (OECD, 2014). Presenteeism (the practice of being at work despite illness, injury, anxiety often resulting in reduced productivity) from mental ill health alone costs the UK economy £15.1 billion per year, almost twice the business cost of actual absence from work (Centre for Mental Health). One-quarter of employees have considered resigning due to stress and a further one in ten has done so (Mind, 2015).

The statistics are pretty compelling, but the majority of businesses do not focus on managing mental health in the workplace or see it as a business priority. Why is this?  There will be many reasons for this, such as perceived time and cost pressures, although perhaps this could be challenged in view of the cost of absenteeism and presenteeism. A significant factor in reality is likely to be fear and stigma associated with mental health issues. In a survey carried out by MIND (2014) 69% of individuals feel there is a stigma around mental health and 54% fear colleagues would judge them for having mental ill health. 

Looking after your business assets – your employees 

We have a long way to go to break down the stigma associated with mental health and employers can play a vital role in this. Employees are often seen as the most vital asset within a business, therefore it makes sense to look after employees and by talking about and creating a working environment that supports good mental health employers can play a vital role in reducing discrimination and stigma associated with mental illness.

A useful starting point for businesses is to access good information.  Business in the Community (BITC) is a useful resource as well as Mind and the Mental Health Foundation. The BITC 2015 report, Mental Health: We’re Ready to Talk – One year on, shows the quick pace at which business Champion companies had started to promote mental wellbeing within their organisations. The Mental Health Foundations guide on Managing Mental Health in the Workplace is also a good read in my opinion and looks at strategies to safeguard good mental health, how to address problems before they become severe and how to support employees when issues do emerge. The guide recommends that companies seek the help of outside agencies who offer specialist support to employees who are struggling in or out of work due to poor mental health. 

Accessing specialist Mental Health services in Norfolk

At Feel Well Therapy we recognise that employers need to access specialist services that provide the right type of help for their employees.  We specialise in providing Cognitive Behavioural Therapy (CBT) which is recommended by NICE (National institute for Clinical Effectiveness) as an effective therapy for treating stress, anxiety disorders (including GAD, panic disorder, OCD and PTSD)   and depression and Eye Movement Desensitisation Therapy (EMDR) for the treatment of PTSD. 

Helping individuals to achieve good mental health is our business. Based in south Norfolk, we provide services to individuals, business, and insurers and feedback from our clients shows that 100% of those surveyed would recommend us to friends and family.

 Whether you are an individual seeking private therapy, or a company looking to access specialist therapy services to improve the mental health of your employees then please contact us via our website at www.feelwelltherapy.co.uk or contact Michelle Webster Clinical Lead and Founder of Feel Well therapy at [email protected] or call 07957 350396

#WorldMentalHealthDay

The objective of agricultural occupancy conditions (AOC), from a national and local planning perspective, is to protect property in agricultural settings from development and to ensure that agricultural workers are able to secure low-priced accommodation in the locality in which they work. An AOC usually requires that: “the occupation of the property is limited to a person solely or mainly employed, or last employed, in the locality in agriculture…or in forestry (including any dependents of such a person residing with him) or a widow or widower of such a person” In effect this means that the property is subject to a planning condition which requires the occupant of the property to be locally employed in agriculture. Section 336(1) of the Town and County Planning Act 1990 defines ‘agriculture’ broadly to include: 1. Horticulture, fruit growing, seed growing, dairy farming; 2. The breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land); 3. The use of land as grazing land, meadow land, osier land, market gardens and nursery gardens; and 4. The use of land for the woodlands where that use is ancillary to the farming of land for other agricultural purposes. Effect of an Agricultural Occupancy Condition The key effect that an AOC has is upon the value of the property, which is why our teams are so often involved in ensuring they are removed. Although the value of a property subject to an AOC is case specific, in general it will be valued at 10%-40% below the market value of the property unencumbered by the AOC. This is particularly important in transactions which are being funded by mortgage finance, as disclosure of an AOC could result in the lender withdrawing a mortgage offer or the lender’s valuation of the property being adversely affected. It is vital when considering re-financing an agriculturally tied property to ensure that the reduction in value of the property is considered when assessing whether it provides sufficient security for the loan. It is, therefore, crucial in rural property transactions to commission a Local Search and review all planning permissions connected with the property at an early stage to ascertain whether an AOC applies. Complying with an Agricultural Occupancy Condition As with all planning conditions, owners and occupiers of the property are required to comply with them. If an occupier fails to comply with an AOC, the Local Authority may serve an enforcement notice detailing the steps required to comply with the planning condition within a set timeframe. Once this has been served it will apply indefinitely to the property, this means if the notice is initially complied with but there is a subsequent breach, the enforcement notice will be reactivated. Failure to comply is a criminal offence and upon conviction the offender is liable to an unlimited fine.  The time limit for enforcement action for a breach of a planning condition is 10 years from the date of the breach. The difficulty in cases of AOCs is that the breach of the condition must be continuous over the period of 10 years. This means that if at any point within, or after, the 10 year period the AOC is complied with, i.e. an agricultural worker occupies the property, then the 10 year time limit on enforcement action will be restarted. Solutions for an Agricultural Occupancy Condition An individual wishing to negate the adverse effects of an AOC in relation to a property has two options; apply to remove the condition under an application pursuant to s 73 of the Town and Country Planning Act 1990 or apply for a Certificate of Lawful Established Use (CLEUD). 1. Application to remove a Planning Condition In order for an application to remove an AOC to succeed, the applicant will need to demonstrate that there is no longer a need for the property to be reserved for an agricultural purpose. Demonstrating this point can usually be achieved by marketing the property unsuccessfully at a price which adequately reflects the decreased value of the property due to the AOC. The period of time that the property will need to be marketed to provide sufficient evidence can vary so relevant enquiries should be made to the local planning authority, but in general a six month period is usually sufficient. However, there is a risk that a genuine offer is received which makes it more difficult to argue that there is no longer a need for such a dwelling in the locality. 2. Certificate of Lawful Established Use A CLEUD establishes that an existing use is lawful and therefore prevents enforcement action from the local planning authority. If an AOC has been breached continuously for at least 10 years then the occupier may apply for a CLEUD. The application must contain sufficient evidence to demonstrate that the breach has been continuous over a period of 10 years working back from the date of the application. This evidence can take the form of statutory declarations of previous occupiers, letters of employers of confirming previous occupier’s employment or employment contracts. It is important to note that if the AOC is complied with after the CLEUD is obtained, it can no longer be relied upon, and the AOC would come back into force again. For this reason, it is preferable to apply to remove the AOC to prevent any risk that the AOC will be revived upon future compliance. Furthermore, even if a CLEUD is successfully obtained, it does not remove the AOC from the property so a planning application to vary or remove the condition will need to be made. If your property is subject to an agricultural occupancy condition and you need assistance or if you have any questions on anything covered in this article, please do not hesitate to contact our Property Disputes, Planning or Agriculture teams on 01603 610911. Please note, the content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

A common source of tension between adjoining landowners is when differing views are held in respect of the position of the boundary which separates their respective land. Disagreements of this nature can often lead to protracted disputes and an irreparable breakdown in neighbourly relations. Part of the problem is the very common misconception that the first port of call, when seeking to determine the position of the boundary, is to consider the Land Registry title plans. Whilst this may seem like an obvious and sensible starting point, the reality is that the Land Registry plans will often show “general boundaries” only, rather than the legal position of the boundary, and can therefore have significant limitations in respect of their accuracy. Warring neighbours often rely solely on the “Land Registry” plans which kicks off the dispute on the wrong foot. The primary source of establishing the boundary line between properties should, instead, be the original conveyance – that being the conveyance which first divided the land and created the boundary. A conveyance contains a “parcels clause” which should define the land in question with sufficient clarity to enable the boundary to be determined. There are, however, occasions where the parcels clause falls short of being able to provide a definitive answer, particularly where the measurements in dispute are small. In those circumstances, the next step is to consider the extrinsic evidence, such as; the physical features on the ground, sales particulars, the conduct of the parties, photographs, architects drawings – to name but a few. Therefore, whilst the position of a boundary may initially seem like a straightforward matter of fact, it can be a far more complex issue, often requiring detailed consideration as well as specialist legal advice. At Leathes Prior we have a dedicated Property Disputes Team which is extremely experienced in working out the legal positon of the boundary by reviewing the deeds and extrinsic evidence; members of our team are often found rooting around searching for old fence posts and tree stumps! If you require advice on any boundary issues, please do not hesitate to contact our Property Disputes Team on 01603 610911 who would be more than happy to assist. Please note the content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

From 1 October 2017 there will be a significant change to the way in which businesses have to deal with pursing debts owed to them by individuals and sole traders, which is likely to impact most businesses’ credit control procedures.

Please note: these changes are compulsory and very prescriptive.

If you are a business then these new procedures must be followed prior to issuing a debt claim against an individual or sole trader which in the case of any new debtcollector matters means that you either need to have complied with the protocol before passing a debtor to us for further action or we can look at assisting you with the protocol.  However, from 1 October 2017 onwards we will no longer be able to apply our very low cost debtcollector rates to claims against individuals or sole traders (see below), though the cost is still likely to be far less than most solicitors’ fees for similar claims.

In order to comply with the changes you must send the debtor a letter before claim along with a statement of account and a response pack (as prescribed by the Pre-Action Protocol for Debt Claims, which includes an information sheet and reply form, along with a financial statement form). The letter before claim will allow the debtor 30 days to pay or respond, whereas previously 14 days was the norm (and indeed that should remain the case for claims against larger businesses). The next step will depend upon the response received from the debtor, if any, though it is possible for the debtor to extend the process by up to 90 days, or in some circumstances even more. 

Failure on the part of the creditor to comply with the steps set out in the protocol may result in penalties such as costs orders or denying interest you have claimed, or the court could even stay proceedings pending further compliance and costs.

Broadly speaking, you have the following options if you wish to ensure compliance with the new protocol:

1.    You may be able to seek payment from all individuals and sole traders in advance (though for some industries that may be commercially unrealistic)

2.    You can instruct Leathes Prior to pursue the debtor in the usual way and we will follow the steps of the protocol on your behalf. Such claims will not be covered by the terms of our debtcollector service and the cost is likely to be a little higher than the cost prior to 1 October 2017. We are happy to provide a quote for our fees but, given the way the protocol operates, the initial cost is likely to be a little higher and the cost at the outset of pursuing a debtor is likely to be around £150 – £200 plus VAT (whereas prior to 1 October 2017 our initial fee was around £40 – £100 plus VAT), plus the usual debtcollector rates once proceedings have been issued (assuming no dispute arises).

3.    Alternatively, Leathes Prior can provide your business with the necessary training and resources required to instigate and comply with the new protocol before passing a debt to us to then issue legal proceedings. Please just give us a call on if we can help at all and we can provide a quote over the phone.

If you have any questions on any of the changes, or on debt collection in general, please get in touch with us on 01603 610911.

In April 2019, the United Kingdom of England and Wales will leave the European Union. But at the moment, it is a legislative act that happened 480 years prior to that date which seems to be concerning everyone. In 1539, Parliament enacted the Statute of Proclamations, which is supposed to have given King Henry VIII absolute power. The wording of the Act states that proclamations shall be “obeyed, observed, and kept as though they were made by act of parliament”. Big words. Some historians appear to consider this to have been a power grab by the King, trying to rule as an absolute tyrant. In practice, actually, the rest of the Act goes on to say that these proclamations must be given in council, and then gives a list of things that a proclamation cannot do (including, for example, protection of property, the right to life and the preservation of the common law). Comparisons have been made between the Statute of Proclamations and the European Union (Withdrawal) Bill 2017-2019 (also known as the Great Repeal Bill). As at the date I write this blog (19 September 2017), the Bill had just had its second reading approved in Parliament by 38 votes. Labour is opposed. The reason apparently is because of the delegated legislation provisions, which are the Henry VIII clauses.  One key provision is clause 7, which provides that the government can make any law it wishes to prevent, remedy or mitigate a deficiency in EU law as transposed to UK law. Subsection 4 states that “regulations under this section may make any provision that could be made by an Act of Parliament” which has such similarities to the Statute of Proclamations that I wonder whether the drafters put that in on purpose. Like the Statute of Proclamations, it also then goes on to create a list of things it can’t do (including, for example, increasing taxation or revoking the Human Rights Act). It might be worth having a bit of a debate about whether Henry VIII was more restricted, because he had to make decisions in council, as compared to David Davis who appears to be able to make any decision he likes. However, no doubt this legislation is going to get scrutinised to death in Parliament and these sorts of issues are going to come up. What is more interesting is the effect of the legislation itself, specifically the core provision that EU law will be transposed into UK law. Going back to the immediate aftermath of the EU referendum, I wrote in this blog that what was needed was legislation that transposed all UK law into EU law, and I then wrote another post gloating about how the government had decided to do exactly that, and that politics had become all too predictable.  However, it is worth thinking a bit more carefully about the impact that the Great Repeal Bill has on the UK’s membership of the single market.  Politicians of all stripes are talking about remaining in the single market, having access to the single market, retaining all the benefits of the single market or leaving it altogether. The single market is an area where laws relevant to trading are harmonised, to make it easier for seller from Country A to sell products and services in Country B. That is achieved by the institutions of the EU generating laws which apply to all members of the single market. If one of the members were to not comply with those laws, it would be harder (though usually not impossible) for its citizens to sell products elsewhere, and harder for citizens elsewhere to sell products in that country. The single market works because the EU enforces those laws directly onto EU citizens. Regardless of where David Davis takes our Brexit negotiations, the Great Repeal Bill is a bit of a coup d’état for those who want to leave the single market (there are others who want to remain in the single market whilst still leaving the EU). It provides that EU law will become part of UK law, and in turn the UK can then legislate at will. That is the very definition of withdrawal from the single market.  The UK will no longer have that mechanism in place to make the buying and selling of goods across the EU a bit easier. It will probably still be possible to buy and sell goods and services across the EU, but it will be a little bit more expensive.

On Friday 1 September 2017, shortly after 2 am, former England football captain Wayne Rooney was seen by the police to be driving a Black VW Beetle, which transpired to belong to woman he had met earlier that evening when socialising with friends. At the time, the police noticed a rear tail light had gone out and intended to follow the vehicle but it pulled over with Rooney seen to be at the wheel with a female passenger. Rooney was suspected to have been intoxicated and provided a positive roadside breath test before being taken to the police station where the reading was confirmed.

Rooney having been arrested and charged with an offence of driving with excess alcohol appeared before Stockport Magistrates’ Court on 18 September 2017 where he tendered his ‘guilty’ plea. The Court heard that the breathalyser reading showed the footballer’s alcohol level was 104mg per 100 millilitres of breath, which is almost three time the prescribed legal limit (35mg). The court also heard that Rooney currently had three points on his driving licence for a speeding offence on August 24 2016.

Rooney’s legal team acknowledged the severity of the matter, and during mitigation invited District Judge Termperley to consider not imposing a community order because of his ongoing charitable work the footballer carries out. Alternatively, the District Judge was asked to resolve the matter by way of a driving ban and financial penalty. In doing so, the Court were also informed that Everton Football Club were to fine him two weeks wages as a result, which is understood to be in the region of about £300,000.

However, District Judge Temperley stated this was a serious matter that placed Rooney and other road users at risk due to his poor judgment that particular evening. Whilst the judge accepted Rooney’s remorse was genuine and he was aware of the adverse effects the events that night has have had, the judge was not convinced that the imposition of a large fine would have the same effect.

Accordingly, the 31 year old was disqualified from driving for two years and ordered to perform 100 hours of unpaid work as part of a 12 month community order. Rooney was also ordered to pay £170 in respect of prosecution costs and a victim surcharge.

In a statement of apology issued after the hearing, Rooney said,

“Following today’s court hearing I want publicly to apologise for my unforgivable lack of judgment in driving while over the legal limit. It was completely wrong.

I have already said sorry to my family, my manager and chairman and everyone at Everton FC. Now I want to apologise to all the fans and everyone else who has followed and supported me throughout my career.

Of course I accept the sentence of the court and hope that I can make some amends through my community service.”

Rooney has agreed with leave of the Court to undertake a drink-driving rehabilitation course, which if successfully completed in the allocated time could reduce his driving ban by a period of 24 weeks. In the meantime, he will have to rely on chauffeurs to and from football training and for his unpaid work requirement, which will be costly.

Where a property’s boundaries do not directly abut a public road, issues can arise concerning access to the property. In such circumstances, a right of way (legally defined as an easement) over the road or land connecting the property to the road is necessary to ensure that the property is legally accessible. Problems arise where, despite a Landlord granting express rights of access and egress to a Tenant in a Lease, no legal rights of access to the Landlord’s freehold property exist. This can result in the Tenant’s access to the property being barred. This article highlights potential solutions which can be utilised by companies, or individuals, when taking a Lease of a property where no legal rights of access to the freehold property exist.   Creation of an Easement The most effective solution to the absence of a legal right of access is to request that the Landlord obtain one.  An easement can be created by:

• Express grant by a deed of easement. Typically this will involve the payment of a premium to the owner of the servient land (the land over which the easement is being granted).
• Implied grant where the owner of the servient land disposes of part of the land.
• Prescription (continual exercise of a right over a period of 20 years or more exercised openly, continually and without hindrance, licence, payment or permission of any kind). A statutory declaration by the person who has exercised the right of way for the 20 year period is sufficient evidence, provided no evidence is produced by the owner of the land to the contrary, that the easement has been acquired. The statutory declaration can be sent with an application to the Land Registry in order to register a notice on the title to the affected land. That notice will then protect the easement and allow it to be exercised in future.
• Under an exchange of land (for example on a compulsory purchase order).

Protective Clauses within a Lease If a potential Tenant decides to proceed to acquire a Lease where the freehold property does not benefit of the right of way to enable sufficient access to the property, and the Landlord has refused to take the requisite steps to obtain an easement, it is sensible to ensure that protective provisions are negotiated into the Lease.  A well drafted break clause can provide the Tenant with the option to terminate the lease upon experiencing difficulties exercising the right of way to access the property. This grants the Tenant the flexibility to elect to terminate the Lease in circumstances where barred access to the property is adversely affecting their occupation of the property. In addition to this break right, a rent suspension clause within a Lease can provide that the rent for the lease to be suspended during any period where access to the property is barred. Indemnity Insurance A lack of easements indemnity insurance policy can be obtained to protect a Tenant from any financial loss arising from lack of access to the property. Obtaining indemnity insurance may involve an initial financial outlay of the premium cost by the Tenant if the Landlord refuses to cover the cost of obtaining a suitable indemnity insurance policy. However, indemnity insurance can be an expeditious method of resolving legal access concerns where time is of the essence in a transaction. If you are granting or acquiring a Lease and need assistance, or if you have any questions about the contents of this article, please contact our Commercial Property Team on 01603 610911. Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

Compensation in Discrimination Claims set to Increase New “bands” for calculating compensation to Claimants for “injury to feelings” in discrimination claims have been published, which come into effect for claims brought on or after today, 11 September 2017. For claims issued from today, compensation for “injury to feelings” will be at the following rates:

• Lower band: £800 – £8,400
• Middle band: £8,400 – £25,200
• Upper band: £25,200 – £42,000
• Exceptional cases: £42,000 +

What is injury to feelings? Injury to feelings is compensation awarded in discrimination claims. It is compensation to a Claimant for “injured feelings” – i.e. the hurt, upset, anxiety or distress that they have suffered as a result of discriminatory acts. A Claimant does not usually need to show medical evidence or a diagnosis of any psychiatric injury arising from the discrimination in order to claim injury to feelings. Where a Tribunal is satisfied that a Claimant has been subject to unlawful discrimination, it then assesses how much upset a Claimant has suffered, looking at all of the circumstances of the case before it, to decide how much compensation should be awarded for injured feelings. The Tribunal does that by categorising treatment into “bands”:

• The lower band. 

This band is used in less serious cases of discrimination, for example where the act of discrimination is an isolated or one off occurrence.

• The middle band. 

This band is helpfully described by the Tribunal as being for “serious cases, which do not merit an award in the highest band”.

• The upper band. 

The Tribunal will find that an award in the upper band is appropriate in the most serious cases, for instance whether there has been a lengthy campaign of discriminatory treatment.  Only in the most exceptional cases will an award for injury to feelings exceed the upper band limits. Once the Tribunal has determined which band the matter falls into, it then looks to the set compensation levels for that band in order to determine how much compensation the Claimant should receive.  So, if the Tribunal determines that the compensation awarded should be in the lower band, the Claimant will receive between £800 – £8,400 compensation for injury to feelings.  The Tribunal also has the power to award a Claimant other compensation on top of that, including for any financial loss suffered, and for being unfairly dismissed (if applicable). Why the change? Earlier this year, the Court of Appeal made clear that it felt that compensation for injury to feelings had fallen behind inflation and was therefore in need of adjustment. That prompted the increase. What does this mean? The increase in the compensation bands is dramatic. Previously, the limits were £600 – £6,000 for the lower band; £6,000 – £18,000 for the middle band; and £18,000 – £30,000 for the upper band. As a result, the potential exposure to employers in discrimination claims has markedly increased. For discrimination claims brought on or after 11 September 2017, the position is simple; a Claimant can now recover more than they would have done had they issued the claim last week. That said, it is important to take this uplift against the backdrop that awards in the upper and exceptional bands are rare, with the current average award for discrimination claims being just under £14,000. Whilst that average may increase, it is unlikely that many will ever face the upper band awards above. For ongoing claims, the position is less clear. The Tribunal may exercise its discretion to apply a percentage increase on the previous bands (likely a 10% increase), though it is unlikely it would apply the new bands absolutely to any existing claims. What happens in practice we will wait and see… So, the advice to employers does not change: tread carefully and try not to unlawfully discriminate against employees…whilst it was potentially costly before, it is even more so now! If you are facing any allegations of discrimination, or are faced with the task of managing employees who you believe are likely to allege discrimination, please do not hesitate to get in touch with one of the team for advice. If you would like more information on the content of this article please contact our Employment Team on 01603 281153. Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

A 20 year-old cyclist has recently been acquitted of manslaughter, but alternatively found guilty of ‘wanton or furious driving’, after a 44 year-old woman died having been struck by the cyclist on his bicycle in February last year when crossing the road in East London. It should be noted that this appears to be the first occasion a cyclist had been prosecuted for manslaughter in such circumstances. Causing bodily harm by ‘wanton or furious driving’ is an offence under section 35 of the Offences Against the Person Act 1861. This historic piece of legislation is still used in criminal courts up and down the land, being the basis of the offences of actual bodily harm and grievous bodily harm, and wounding. Such an offence encapsulates being in charge of any kind of vehicle or carriage, including bicycles. At the time of the incident the cyclist was riding a Planet X fixed wheel bike which he purchased during the preceding month. The bicycle was designed for riding in a velodrome, thus not lawful for use on the road without first being modified to add front brakes. Having no front brakes on a pedal cycle (with a saddle more than 63.5cm from the ground) on a public road is an offence in itself in accordance with regulation 7(1)(b) The Pedal Cycle (Construction and Use) Regulations 1983, however in this case the prosecutors took the unprecedented step of charging the individual concerned with manslaughter, which carries a maximum life sentence. Crash investigators who studied CCTV of the incident concluded the cyclist would have been able to stop and avoid the collision if the bike had been fitted with a front brake. Posting online after the incident, the cyclist described how he warned the individual twice to get out of the way. He went on yo state: “It is a pretty serious incident so I won’t bother saying oh she deserved it, it’s her fault. Yes it is her fault but no she did not deserve it…Hopefully, it is a lesson learned on her behalf, it shouldn’t have happened like it did but what more can I say.” The alternative offence for which the cyclist was ultimately convicted carries a maximum sentence of two years imprisonment and/or an unlimited fine. The cyclist will be sentenced at the Old Bailey on 18 September 2017, with Judge Wendy Joseph QC commenting that a custodial sentence is a distinct possibility. Judge Wendy Joseph QC, in her closing remarks, also stated: “If you want to rely on remorse, I am bound to say I haven’t seen one iota of remorse from Mr Alliston at all – at any stage.” This case has led to suggestions that cyclists who cause incidents should be subject to the same or equivalent offences as those charged against drivers. Whilst collisions between pedestrians and cyclists are comparatively much rarer and less likely to result in serious injury than collisions between pedestrians and motorists, serious incidents evidently still occur. A report compiled by Cycling UK claims that, in the period between 2005 and 2015, 32 pedestrians were killed in collisions with cyclists. If you have any questions on anything covered in this article, contact our Criminal Defence Team on 01603 610911.