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Nick’s Retiring!

Boddy Matthews put on celebrations to mark the retirement of senior commercial consultant solicitor Nick Fieldhouse, who however remains on hand for sharing his expertise in over 35 years in the legal industry. Nick has been an invaluable asset as part of the Corporate and Commercial team and is a noted key lawyer in the 2022 Legal 500. The Boddy Matthews team enjoyed lunch followed by a delicious themed cake.

2021-11-30T16:38:19+00:00Nov, 2021|

Selborne Chambers Annual Litigation Conference, 6 October 2021

Kate Matthews of Boddy Matthews Solicitors was delighted to attend the Annual Litigation Conference 2021 of Selbourne Chambers, in person. The Conference began with a round-up of recent Supreme Court decisions. Kate then participated in great group workshops on the essential grounds of professional negligence and the recent developments relating to the rule against reflective loss. The event was also a fantastic opportunity to network in person again with the legal fraternity over a couple of glasses of champagne and tasty food!

2021-11-30T10:38:38+00:00Nov, 2021|

Discrimination by association: why employers cannot ignore employees’ private lives

Discrimination by association: the basics

The concept of “discrimination by association” – where the party subjected to discrimination does not possess a Protected Characteristic (PCs) but is associated with someone who does – has been around for quite some time. It is most often applied and used in direct discrimination and harassment claims. One example may be a white employee complaining about racist jokes at work. Although the treatment in question is not meted or directed at the white employee, his association with, say, black colleagues is sufficient to justify any offence felt by the white employee for a claim to be made.

But what about claims for indirect discrimination, where the treatment in question is not directed at the employee. You may recall that indirect discrimination claims arise where an employer operates an “across the board” policy or procedure but some employees are more negatively impacted by it than others and the employer cannot justify the policy or procedure on non-discriminatory grounds.

A recent tribunal decision, based on a European court judgment, confirmed that a claim for discrimination by association can be made in such cases. This means that an employer’s policies and procedures will be considered in light of their impact on employees, but where the PC in question is not theirs. Employers may well need to know more about their employees’ associates than they ever did before.

 

A healthy employee with caring responsibilities for a disabled relative unlawfully discriminated against by a requirement to work full-time at the office

In a recent case to reach the employment tribunal, an employee who was dismissed for redundancy won her claim for indirect disability discrimination by association. The employee, who was not herself disabled, was the principal carer for her disabled mother. She was employed as a Senior Lending Manager (SLM) by Nationwide on a homeworker contract. When Nationwide decided that SLMs could no longer work at home on a full-time basis due to the need to provide effective on-site supervision, the employee could not comply and was subsequently dismissed.

An employment tribunal agreed that employees who care for disabled people were less likely to be able to be office-based than employees who do not have such caring responsibilities. As a result, carer employees (including the claimant) were at a substantial disadvantage because of their association with a disabled person.

Although employers can justify indirect discrimination (on non-discriminatory grounds), in this case, no such defence could be made out. Nationwide was fully aware of the employee’s mother’s disability and the disadvantage that she would suffer by the application of its requirement but did not take reasonable steps to avoid the disadvantage. The tribunal also took the view that the identified need to provide effective on-site supervision was in itself discriminatory and, in any event, Nationwide could achieve it through hybrid working.

 

Consider the facts; talk to your staff

The case serves an an important reminder that employers who seek to introduce new policies and procedures ought to, first, consider employees’ personal circumstances and, second, adopt the path of least disadvantage if their employees’ association with others with protected characteristics may place them at a significant disadvantage.

Referring specifically to the facts of this case, employers with staff with caring responsibilities will be wise to consider carefully whether an across-the-board policy can be justified and whether a less discriminatory approach may be used. Failure to do so will be at their peril.

2021-10-04T14:39:37+01:00Oct, 2021|

Boddy Matthews to take part in the London Legal Walk

Boddy Matthews Solicitors are delighted to support the London Legal Support Trust in 2021. The Trust helps to provide pro bono legal advice in London to increase accessibility to all who may need advice on their rights. The Boddy Matthews Team is helping to raise much needed money to support this brilliant cause by taking part in the London Legal Walk in October 2021. The Legal Walk is a 10k walk around the sites of London, where all those in support, together with over 4500 other legal colleagues, will be participating. Please click here to sponsor the Boddy Matthews Team.

2021-09-27T15:20:11+01:00Sep, 2021|

Kate Matthews launches EWiF Talk40!

During June, July and August 2021, Kate Matthews of Boddy Matthews Solicitors launched EWIFTalk40.  EWIFTalk40 is a remote event, being a fully interactive 40 minute lunch time chat with like-minded EWiF ambassadors to discuss thoughts and experiences. The event sessions follow the content raised by the EWiF #FranchisingStrongerTogether campaign (more information here) generating up to date discussion on issues affecting the franchising industry.

 

Kate Matthews  says “these type of short inter active sessions focus on a given current franchise topic and are designed to encourage, motivate and stimulate those involved in the franchise world. The aim is to provide support and share relevant experiences with a view to helping women overcome their lack of self-belief, fears and obstacles and grow their business.” Do visit the EWiF website for more information.

2021-09-27T15:13:14+01:00Sep, 2021|

What if things go wrong?

Kate Matthews, partner at Boddy Matthews Solicitors, explains how to resolve disputes on a step-by-step basis.

Owning a franchise can be a fruitful business relationship where success for franchisor and franchisee is interdependent. Clear and effective communication is a key factor for that success.

It is therefore all the more important to swiftly address concerns arising during the course of this relationship, however big or small, to avoid potentially long lasting adverse damage to the relationship or at worst its ultimate early termination.

A well drafted and ethical Franchise Agreement, as promoted by the British Franchise Association (the bfa), and the European Code of Ethics for Franchising will contain a clear (Alternative) Dispute Resolution (ADR) clause. This clause will set out how to resolve disputes on a step by step basis.

How to choose? Which ADR step is best? What should I know?

Step 1: Communicate
Lack of communication may often be the root of a problem. Whilst some disputes cannot be avoided, many could be resolved through clear, open and effective communication. A cost effective solution may simply be to open that dialogue with your franchisor and together negotiate and work towards a resolution. This is often the first ADR step.

Step 2: Mediate
Mediation is a private, confidential and flexible form of ADR, facilitating the parties in reaching an agreement where possible. If the parties have agreed to mediate, discussions are carried out on a without prejudice basis. Therefore it is not binding unless the parties, with the help of a neutral third party Mediator, reach an agreement which is then recorded in writing and signed by all parties. A Mediation can include all aspects of the relationship and is not limited to the legal issues. A facilitative Mediation can with agreement become an evaluative Mediation if the parties so choose, where the Mediator can provide a solution which the
parties agree to honour. The franchise relationship can be preserved and it is cost effective. The BFA operate a mediation scheme.

Step 3: Arbitrate
Arbitration is more formal than mediation and an alternative to litigation. The parties agree to resolve their disputes through Arbitration not Court. Whilst it tends to follows a similar structure to Court proceedings, depending on the Arbitration rules applicable, it is a private process, confidential and binding. The parties choose and pay for the process and the arbitrator/s and their expertise. Arbitration is usually less expensive than litigation.

Step 4: Litigate
Litigation/Court proceedings is often the last resort. The parties follow Court Rules. An independent impartial Judge will make a binding judgment. Court fees apply but not for the Judge or venue.

So where does that leave me? Top tips!

• Avoid communication breakdown
• Seek an informal solution
• Negotiate
• Check the ADR clause and steps
• Check the governing law and jurisdiction
• Seek a solution using ADR

For further information and advice, please contact info@boddymatthews.com.

2021-09-24T16:30:55+01:00Sep, 2021|

Kate Matthews EWIF Double Award Winner! Service Provider and Ambassador of the Year 2021

We are delighted that partner and specialist franchise lawyer, Kate Matthews of Boddy Matthews Solicitors was a double award winner at the EWIF Awards 2021. Kate was awarded the highly coveted and prestigious awards in the category of the EWIF Service Provider of the Year 2021 and the category of EWIF Ambassador of the Year 2021. These two awards to Kate are a high accolade to her work and a testament to her dedication and commitment to our franchising clients and in particular the EWIF mission. The Boddy Matthews team is excited to be able to properly celebrate Kate’s success when UK Government lockdown restrictions allow. Boddy Matthews Solicitors would also like to congratulate again all the other finalists and especially the winners in their respective categories.

2021-09-24T15:44:35+01:00Sep, 2021|

Flexible work requests: Why employers must get these right

The recent case of a London estate agent who won damages in excess of £180,000 after her flexible work request was rejected, is of vital importance to both employers and employees. The case serves as a salutary reminder of why it is important to deal with flexible work requests cautiously, thoroughly and with an open mind.

Sometimes, less is more

In brief, the employee, a senior and successful sales manager in a small estate agency business, requested to come back from maternity leave on a 4-day week basis and to leave work at 5pm instead of 6pm on her working days. After considering a formal flexible work request, the employer rejected the request, relying on a number of permissible statutory grounds, including the burden of additional costs; detrimental effect on ability to meet customer demand; inability to reorganise work among existing staff; inability to recruit additional staff; and planned structural change.

The employee disagreed with her employer’s approach, raised an unsuccessful grievance and subsequently, resigned her positioned. She brought a large number of employment tribunal claims, including for direct maternity and pregnancy discrimination, indirect sex discrimination and unfair dismissal.

In a lengthy and informative judgment, the employment tribunal rejected all of the employee’s claims bar one, namely the claim for indirect sex discrimination.

Importantly, the tribunal recognised that some of the employee’s complaints (which related to how she has been treated while pregnant and on maternity leave) may retrospectively read hostility into fairly innocent events. However, the tribunal was not side-tracked by this. Reviewing a large body of evidence and claims, it has done a very good job of “separating the baby from the bath water”.

Flexible work requests and sex discrimination

It is notable that while the flexible work request was at the centre of the employee’s complaints, she did not bring a claim under the flexible work request legislation. This is because such claims rarely succeed and are of limited value. Instead, the complaint and question for the tribunal was whether the rejection and its rejection amounted to indirect sex discrimination and, if so, whether the employer could rely on grounds for rejecting the complaint so as to justify any such discrimination. On the facts, the tribunal held that it could not.

While the tribunal lent some sympathy to the employer, it doubted the validity of the grounds on which the employer sought to rely. The tribunal felt that the employer’s grounds were not rooted in evidence and were the result of reluctance to change existing arrangements, rather than solid facts. Also, and crucial to the tribunal’s decision, was its finding that “notwithstanding an encouraging shift in societal attitudes, it is still the case that mothers are more likely to carry primary [childcare] responsibility than fathers”. With this in mind, and on the basis that the employer was unable to provide satisfactory evidence that the grounds for rejecting the employee’s complaint were genuine, the tribunal found for the employee.

Money, money, money

Awarding the employee £184,961.32 by way of compensation, the tribunal took into account the employee’s “sustained search for work”, as well as the impact of the Covid-19 pandemic on her efforts and actual losses. The employee was compensated for losses spanning over some 20 months (of which 18 months preceded the hearing) and include pay in lieu of Furlough pay the employee was likely to have been paid had she remained at work.

There are no real winners in this case. The employer has to pay significant damages on top of legal fees and the loss of a valued and successful member of staff. The employee lost her livelihood and a career she enjoyed and excelled in. It is possible that if the parties had the chance to go back in time, they would have approached things differently. For those receiving flexible work request in future, we can only reiterate the advice to deal with such request cautiously, thoroughly and with an open mind.

 

2021-09-15T11:05:14+01:00Sep, 2021|
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