Employer note: is being obese a disability? Sometimes, says European Court

The European Union Court of Justice has recently determined that, in certain circumstances, obesity may be regarded a disability in the employment context.

The case in question concerned a Danish overweight childcare worker who instigated a discrimination claim against his employers following his dismissal. The claimant said he was dismissed because of his weight whereas the employer contended it was due to reduced demand for child care services.

The Court ruled that discrimination on the basis of obesity, of itself, was not unlawful. However, where obesity leads to some other condition –depression for example – the employee’s obesity may fall within the concept of disability as the terms is understood in the relevant EU directive.

So, where an individual’s obesity affects that person’s participation in working life by way of reduced mobility, for example, preventing that person from carrying out their duties or causing discomfort when engaging in work then the individual may be disabled person for the purposes of the EU directive. Arguably, the real issue is the way the obesity affects the person, rather the fact that the person is obese.

This decision does not alter UK law in respect of the issue as to whether someone is disabled for the purposes of the Equality Act 2010, the relevant local legislation. To satisfy the requirements of disability discrimination legislation a person still needs to be able to prove that he or she has a physical or mental impairment which has a material adverse impact on his or her ability to perform their everyday duties and which is sufficiently long term (i.e., having lasted or likely to last at least twelve months). In essence, the European Court has determined that obesity itself is not a disability, but instead that its effects can result in a person being disabled for the purposes of the relevant disability discrimination laws. If a person’s obesity results in a specific adverse condition– such as, for example, a problem with mobility, or depression – then the Equality Act 2010 may be triggered, depending on the particular circumstances.

In general terms, employers should appreciate that an employee’s obesity may result in the person being deemed to be disabled for the purposes of the Equality Act. This could enliven the duty to make “reasonable adjustments” for the employee. These could concern issues of access to the work place, seating and other logistical arrangements which relate to the discharge of the employee’s function.

Whether the legislation applies in a particular situation will require careful scrutiny. However, as a matter of generality, it would pay for responsible managers of people to put this issue “on the radar”. Careful managers will think ahead about employees who might potentially attempt to claim they are disabled at some time in the future.

If you have any questions about any of these issues, please contact Adams Law partner Antony Marquis at amarquis@adamslaw.co.uk.

“Without Prejudice” – what does it mean?

To the observer, using the words “without prejudice” seems like a simple way to ensure that your letters or documents cannot later be used as evidence in court.  However, in the case of Avonwick Holdings Ltd v Webinvest Ltd, the Court concluded that marking a document “without prejudice” was not conclusive evidence of the parties’ intentions.  The most important consideration is whether the document is produced with the intention of settling a dispute.  Settling the terms upon which a party will pay an agreed liability is not “a dispute” and letters discussing such terms will not attract privilege.

Facts

Avonwick Holdings agreed to loan £100 million to Webinvest on terms that were recorded in a loan agreement in April 2010.  By April 2012, Webinvest was unable to make repayments on the loan and wrote to Avonwick seeking to alter the terms of the loan and repayments.  Avonwick was not prepared to agree to the terms that Webinvest suggested and served demands for the repayment of the outstanding monies.  Following discussions between the parties, Avonwick wrote to Webinvest with a draft agreement to restructure the debt.  The letter was headed “without prejudice and subject to contract”, as were several exchanges thereafter.  The Court was asked to consider whether these exchanges were genuinely “without prejudice” and therefore inadmissible in the main hearing of the dispute as to the terms of the loan.

What is “without prejudice”?

The words “without prejudice” are generally used with the intention of ensuring that a document or letter cannot later be produced in Court.  However, the words themselves are not some sort of magic shield: the Court must consider the objective intention for which the document was created.  A letter or document will only attract this kind of privilege if it was created with the intention of resolving a dispute.  As a result, it does not matter whether a document is marked “without prejudice” or not.  The intention of the party who created the document is definitive.  The rules was created with the intention of encouraging parties to feel more comfortable initiating and partaking in settlement discussions.

Were Avonwick Holdings and Webinvest resolving a dispute?

Webinvest admitted that it owed Avonwick money.  At the time of the “without prejudice” communications, Webinvest simply wanted to renegotiate the terms of the original loan.  The Court referred to the case of Bradford & Bingley v Rashid, where the House of Lords stated:

“If the without prejudice rule is to apply not merely to attempts to resolve a dispute about the existence or extent of a liability but also to discussions as to how an admitted liability is to be paid, that would seem to me a very substantial enlargement of its scope.”

As a result, the Court was of the view that the documents marked “without prejudice” were produced with the intention of re-negotiating the loan and not for the purposes of resolving a particular dispute.  The Court noted that the documents were marked “without prejudice” by an experienced litigation solicitor, who presumably knew the effect and meaning of the words.  However, the Court found that it was likely to have been a mistake and the documents were capable of disclosure in the main dispute between the parties.

In light of the above, it is worth remembering that it makes very little difference if you mark your letters “without prejudice” or not.  A Court will always consider whether there was a dispute capable of being resolved and whether or not the document in question represented a genuine attempt to resolve such dispute.

If you have any questions about “without prejudice” communications, please contact James Smith at jsmith@adamslaw.co.uk.

Landlords now required to check tenants’ immigration status

Last year the Immigration Act 2014 became law. Part of the legislation requires the owners of residential property to regularly check the immigration status of prospective tenants of the property, along with other occupiers. A failure to abide by this legislative requirement may result in a fine of up to £3,000.

Under the legislation, a person may not occupy property pursuant to a residential tenancy agreement if they (i) are not a British citizen, (ii) are not a national of an EEA State, (iii) are not a national of Switzerland or (iv) do not have any right to rent in respect of the property. Further, a tenant has no right to rent a residential property if they require leave to remain in the UK and do not have such leave.

All of this requires a landlord to check an existing tenant or a prospective tenant’s immigration paperwork/ documentation in order to assess whether he or she has the right to rent the property. Where there is uncertainty about whether there is such a right, a landlord will be able to make web or telephone queries. The relevant government department has said that they expect a turnaround time of 48 hours for emails sent to them.

A landlord will have to review a tenant or prospective tenant’s documentation to determine whether they have a right to rent. Where it is not clear whether such right exists, landlords will be able to submit either a website or phone line enquiry. The email service will have a turnaround time of no longer than 48 hours. After this period, the landlord has the ability to let the property to the intended tenant. In essence this is much the same as existing employee checking type services.

The main purpose of the legislation is to deter illegal migrants from obtaining occupation of private rented residential accommodation and encourage the observance of immigration laws. In economic and societal terms, lawmakers have in mind British communities affected detrimentally by unlawful building structures and overcrowding. The Home Office has also mooted that landlords may also enjoy the benefit from less loss of rental income because of the higher standards required.

On the other hand, it is evident that there will be an additional administrative and bureaucratic burden on residential landlords. Some commentators have queried why responsibility for compliance with immigration legislation should sit with property owners. At an economic level, it may cause landlords to prefer a British tenant over a non-British one. One could argue that it would be very tempting for the landlord to prefer the former where the potential administrative burden associated with the latter’s immigration status is the only point of difference. Conversely, it may lead to migrants proposing that they pay a higher rent to address this. In both cases, there is potential for unfairness, and potentially even unlawful discrimination.

Either way, the legislation has been passed and it is likely to be implemented some time in 2015, most likely after the General Election.

If you have any questions about any of these issues, please contact Head of Immigration, Sanjeev Bakhshi at sanjeev@adamslaw.co.uk.

Legal Profession Comments on Applicability of Sharia Law

The Law Society of England and Wales has withdrawn a controversial Practice Note setting out official guidance for solicitors who have clients wishing to prepare a will that conforms with sharia law.  The Practice Note was published in March 2014 and was withdrawn only a few months later in November 2014 following protest from women’s rights and other secular groups. This provides a useful opportunity to consider the relevance of sharia law in England.

What is sharia law?

Sharia law is the Islamic system of law derived from the Holy Qu’ran and the teachings of the prophet Muhammed.  In those states where sharia law is recognised as the official law, it is applied and interpreted by Islamic judges and religious leaders.  Sharia law deals with many different facets of a person’s life, including the usual criminal, family, civil and property law, as well as “private” matters, such as prayer, hygiene and diet.

The Practice Note

The Law Society issued a practice note following numerous queries from practitioners as to how they should draft a will to take account of sharia law.  The practice note made it clear that a will could be drafted pursuant to sharia law, as long as it complied with the Wills Act 1837.  The practice note provided guidance for the drafting of a Sunni sharia will (as opposed to a Shia sharia interpretation of Islamic law).  How is a sharia will different from the traditional English will?

  • Heirs are divided into “primary” (for example: fathers, wives, daughters, sisters) and “residual” (for example: sons and brothers).
  • A testator can choose to give one third of his estate to parties who are not primary or residual heirs, such as charities.  The remaining two thirds is distributed among the primary and residual heirs;
  • Non-muslims, adopted and illegitimate children cannot inherit;
  • Any debts, including burial costs must be settled before the estate can be otherwise distributed.

The Controversy

A number of interest groups were concerned that the Law Society had produced a practice note that seemed to endorse a separate system of law from that of the law of England and Wales.  Further, sharia law is complex and differs between different states, as well as between Sunni and Shia.  Some would say that it is not for the Law Society to endorse a particular interpretation of the sharia law or to express an opinion about sharia law at all.

Sharia law often has the effect of causing men to inherit substantially more than women.  Certain interest groups were unhappy that the Law Society was effectively endorsing a system of law the minimises the rights of women.  For a legal perspective, commentators have noted that the sharia succession rules are such that it is not possible to know exactly who will inherit, or how much they will inherit until the testator dies, which creates uncertainty.

The withdrawal of the Law Society’s Practice Note does not affect your right to dispose of your assets in accordance with sharia law.  The most important thing is that your will complies with the Wills Act 1837.

How is sharia law applied in England?

Sharia law is not compulsorily applied in England.  However, it is possible to apply it in some circumstances:

  • If both parties agree, the Muslim Arbitration Tribunal will apply sharia law (within the framework of the laws of England and Wales) to resolve a dispute without the need to attend a court.  The Tribunal’s decision is enforceable in higher courts pursuant to the Arbitration Act 1996.
  • Islamic banks are permitted to offer sharia compliant mortgages (as charging interest does not comply with sharia law).  For example, a “Murabaha” plan, where the bank buys a property and immediately sells it to the “purchaser” for a profit.  The purchaser will make fixed payments to the bank on the higher “profit” price.

If you would like to discuss how you might apply sharia law to your will or if you have any other questions about the application of sharia law in England and Wales, please contact San Chima (san@adamslaw.co.uk)

Changes to Tier 1 (Investor) Visa Rules

Following a report from the Migration Advisory Committee earlier this year, a series of changes to the Tier 1 (Investor) regime came into force on 6 November 2014. Most significantly, the minimum required investment has increased from £1 million to £2 million. Further, the amendments contain several important changes to the rules regarding the nature of the investment, the requirement to ensure that the investment amount remains at the necessary level and the powers of caseworkers to investigate the origins of an investment. Any application lodged before 6 November 2014 will be processed using the previous regime.

Investment Amount
The value of the investment required for entry to the UK using the Tier 1 Investor scheme has increased from £1 million to £2 million. This increase to the investment amount is thought to be long overdue, as the rules have not changed since 1994.

Proportion
Prior to these most recent changes, the investor could allocate 25% of the investment amount to assets based in the UK, such as a house or bank account. However, the investor must now invest all of the investment amount in active trading UK Companies or government bonds. An investor is no longer permitted to rely upon a loan in order to make up any part of the investment amount.

Value
The requirement that the investment must be “topped up” if it fell below the required threshold value has been removed. However, investors who sell part of their investment must replace the part that has been sold within “the reporting period”. As such, it would seem that the focus has shifted from the “value” of the investment to the “quantity” of the investment, although it is not entirely clear how this new provision might work in practice. It is hoped that further policy guidance will clarify the rules regarding partial sale of the investment. We will provide further comment about this in due course.

The investment is intended to have the effect of fostering economic growth in the UK and it is hoped that the above changes will encourage investors to buy higher risk shares, rather than “safe” government bonds. The government intends to consult further regarding the type of investments that would best encourage economic growth within the UK.

Additional Powers
Caseworkers will have the power to investigate the source of an investor’s funds if they have reasonable grounds to suspect that the funds are not actually in the investor’s control, that the funds were unlawfully obtained (or would be considered so, had they been obtained in the UK), or that the party who is providing the funds is not of good character, such that approval of the application would not be in the public interest. As a result, an investor may need to provide more comprehensive evidence in relation to the history of the investment amount, in order to show how the funds were obtained.

If you have any questions about the new Tier 1 (Investor) rules, please do not hesitate to contact San Chima to discuss how we can assist you with your application.

Top 5 mistakes in leasing commercial property

Although experience as a residential tenant is something that many of us have, taking on a commercial lease can be somewhat different. Whilst the basic idea might be the same, there are different rights and responsibilities attributed to the tenant of a commercial property, which can make handling this type of lease quite difficult for anyone without experience. To ensure that you don’t waste time on unnecessary errors, here are the top five mistakes tenants make when leasing a commercial property:

1. Not calculating the financial element properly. A commercial lease will usually have more financial demands than a residential one – including the requirement that the tenant pays for the insurance, as well as covering costs such as any service charges. Be smart and ask the landlord up front for a complete list of all the charges so that you know exactly how much is involved from the start.

2. Not taking advice. Most professional organisations – such as the British Property Federation – emphasise the need for both landlords and tenants to take professional advice before entering into a new commercial lease. This will ensure that all parties completely understand the document they are signing, as well as making sure that there is nothing wrong with the essential documentation.

3. Expect a rent review. Commercial landlords, like residential landlords, will want to periodically review the rent, however, many tenants make the mistake of assuming that rent will remain the same, particularly on a very long commercial lease. You can expect a rent review roughly every five years or so – if the lease is longer than five years – and any change in the rent should usually be based on what that rent would be worth on the open market.

4. Seeing the landlord as the enemy. Cordial relations between a landlord and tenant can make all the difference to the overall experience. Common courtesies, such as keeping the landlord informed of any events that might hurt their interests, fulfilling proper notice periods in the lease, paying rent on time and raising any issues in a non-confrontational and reasonable manner are all key to making sure that the relationship continues to work on an ongoing basis – for both parties. Changes to the rent, insurance, building improvements or a planning application may all arise over the course of a tenancy and if these can be dealt with without conflict it makes everyone’s life easier.

5. Assignment and subletting. Most leases will have provisions covering assignment and subletting, as these are the two ways in which a tenant can pass on its responsibilities to someone else. Assignment is where the rights under the lease are sold, given away or passed to another paid party, whilst subletting means a tenant remains a tenant but creates a sub version of the lease between themselves and a sub-tenant who will occupy the premises. In most cases, both subletting and assignment will require the landlord’s consent and some leases may prohibit subletting altogether. As a tenant it is important to check the lease for these provisions before you enter into any arrangements as you may be in breach of the lease if you don’t.

Commercial tenancies are essential in business and it is not that difficult to avoid making any serious errors with yours. Bearing in mind the five situations listed above will ensure that you steer clear of making the most obvious mistakes.

If you would like legal advice about any of these issues, or any other issues relating to commercial lease disputes, please contact San Chima at schima@adamslaw.co.uk.

 

Top 5 considerations when drafting a partnership agreement

One of the most fundamental elements of a new venture is establishing the nature of the relationship between those who are involved, as well as their relationship to the business. This is why a partnership agreement is one of the most important documents in the startup process. Here are five key considerations to bear in mind when you are drafting or reviewing a partnership agreement.

1. Avoid ambiguity. A lack of certainty is one of the main reasons that disputes can arise later down the line so ensuring that every aspect of an agreement is clear – and in writing – sets the business off on the right foot to begin with. A typed, signed, dated document that lays out all the key terms of agreement between the partners is essential if the relationship is to be clear and fruitful.

2. State the capital contributions. To a certain extent the amount of cash that partners put into a business will have significant bearing on their relationship with that business – and to each other. So, it is important to clearly state the capital contributions i.e. how much each partner is investing to get the business off the ground. It’s also a good idea to set out where additional funds will come from in situations where the startup capital isn’t enough, as well as clarifying more complex relationships, for example if one partner is providing most of the funding whilst the other is doing most of the day to day work.

3. Profits. This is a key issue for any business so a solid partnership agreement must cover how profits are to be dealt with. This should include when – and how – the partners can take money out of the business, whether a certain minimum must remain at all times, whether there are to be salaries paid and whether money already invested by one or other partners is to be repaid.

4. Disputes and decision making. When beginning a business relationship most people tend to view that relationship in a positive light, assuming cooperation will come as standard and issues will be worked through. However, the reality is not always like that, which is why it is crucial to include both procedures for dispute resolution, and information on the steps that are to be taken to make decisions – the latter may well prevent the former being necessary. How will decisions be made, particularly where partners don’t agree but a conclusion must still be reached? And if events do lead to a dispute how should this be resolved – include here details of preferred avenues of mediation and alternative dispute resolution.

5. Leaving the partnership. As with any relationship, no one wants to consider the end at the beginning. However, in business this is a necessary practical step. What is the exit strategy if the relationship begins to crumble? Is the partnership to be dissolved or continue with one less partner? Setting the exit strategy out right at the beginning lessens the potential for acrimony and disputes if things do fall apart at the end.

A solid partnership agreement will underpin any business and is a crucial part of a good beginning. Incorporating these considerations will give any partnership agreement a sturdy basis.

If you would like clarification on any of the issues raised above, please feel free to contact Salim Mansoor at smansoor@adamslaw.co.uk.

 

Top 5 Tips For Landlords

Landlord and tenant should, in theory, be a fairly straightforward business relationship – the use of premises in return for monthly rent. However, there are numerous pitfalls that await landlords, particularly those who don’t have that much rental experience. Here are five tips on how to avoid falling into them.

1. Take a professional approach from the start. Even if you are renting premises to someone you know, it is still a good idea to ensure that everything is clearly documented in writing. This will prevent disputes at a later stage and will ensure as far as possible the smooth running of the business relationship.  It is also recommended by the British Property Federation that professional advice is always taken when entering into a new relationship with a tenant – and that the tenant takes advice too – so that both parties know where they stand.

2. Make sure the tenant is in a position to pay the rent and costs before signing anything. Assessing a tenant’s ability to pay costs such as rent and service charges is an important part of the process and can prevent situations arising further down the line where there is unpaid rent or bills. Taking references is key here, from accountants, an old landlord, as well as any trade suppliers, and where the tenant is a limited company it’s a good idea to ask to see company accounts. A rent deposit of three to six months rent provides some coverage against loss if a tenant cannot pay, or damages the property and does not pay for the damage. However, if all the evidence points to the fact that the tenant may not be able to meet the costs then it may be preferable to find a different tenant.

3. Maintain the relationship. The British Property Federation puts great emphasis in its Code of Practice on the landlord and tenant dealing with eachother constructively, openly and honestly throughout the term. This includes promptly informing the other party if there are likely to be any difficulties fulfilling the lease and being considerate of actions that may have an impact on the other’s rights or business.

4. Insurance. It is usual for the tenant to pay the cost of insurance but either the tenant or the landlord can usually arrange the insurance (the lease should state who is responsible for this). Where a landlord is arranging the policy then terms should be competitive and if the tenant is a whole building tenant it is often also a good idea to allow them to influence the choice of policy if they want to. Whatever the situation, it is crucial that the terms of the chosen policy are made clear to the tenant from the start and where there is any material change to the terms this information also needs to be passed on.

5. Rent review. Most, if not all, commercial leases will contain a rent review clause that allows the rent to move – usually up. Changes to rent are a sensitive subject and it is generally preferable to link any increases in rental amounts to what is a market rent in order to ensure they are reasonable. Any rent review time limits, notice requirements, scheduled fixed increases, and the stated review periods should be noted and timetabled at the start of the lease to ensure steps are not missed that might invalidate a rent increase.

Landlord and tenant relationships can be smooth sailing where attention is paid to the details. These five steps above will set you on the right road to ensuring that you fulfill your side of the contract and enjoy good ongoing tenant relationships.

If you would like clarification on any of the issues raised above, please feel free to contact San Chima at schima@adamslaw.co.uk.

 

Considerations Arising In The Use of Social Media

Social media has taken the world by storm, in both a business and a personal context. More than a billion people now use Facebook, 220+ million use Twitter, and 225+ million use LinkedIn – and that’s not taking into account the numerous other different types of social media platforms, such as Vine and Instagram. There is no doubt that it has become central to our personal lives, as well as in a business context too – however, it is not without its risks. If you are going to use social media then there are a number of considerations to bear in mind.

What are the risks?

Have you ever wondered how Facebook’s market capitalisation got to more than $100.6bn? Whilst social networking sites might be free to use in terms of there being no fee, they actually take from us another very valuable commodity – information.

In the era of ‘big data’ that we are entering personal information and data on digital habits is like gold dust and this can be gathered by a social networking site and sold on and processed without our knowledge. Not all social networking sites do this, but those that don’t will often use the information they gather for fairly intrusive targeted personal advertising instead.

Social media is a very public forum. Even if you say something online and then regret it and delete it, there is no guarantee that it will have disappeared from the web altogether. It is accessible by anyone, from relatives and friends to work colleagues and your boss. It may feel as if you’re simply throwing words out into the black hole of the web, but the reality is that you may be affecting your chances of future employment, risking your current job or offending those close to you without realising it.

No matter what kind of organisation you are, if you are using personal social media accounts for promotion of your causes/business then you are not relieved of data protection liability.

Data protection

The Data Protection Act 1998 enshrines the right of individuals to see the information that is being processed about them and introduces obligations on the organisations that are processing it. Individuals can see what is being processed about them by making a subject access request. However, the Act only applies in a business context and there is an exemption where an online forum is used only for domestic purposes. This will not apply where that forum is not used only for domestic purposes – so even one tweet or post that is non-domestic will mean the Act applies.

How to reduce the risks

Be sensible – this is the most obvious way to minimise the risks from your use of social media. Don’t post inflammatory comments, don’t give more information to social networking sites than is absolutely necessary and think about whether you’d want your parents/children to see a photo before you post it.

Use the available controls – most social networking websites have privacy options, however a recent survey found that more than three quarters of us simply don’t use them, despite being concerned about online privacy.

Check the privacy policy – this will tell you exactly what will happen to any information that you put into the site, as well as whether or not your data is being sold on anywhere and what will happen to it after it has been sold.

What action can you take when something is already online?

If something exists online that you really don’t want to be there then the first step is to approach the website administrator and ask for it to be taken down – if the post is a breach of the site’s acceptable use policy this shouldn’t normally be an issue. If this doesn’t work then you can contact the organisation that owns the site directly.

Whilst social media seems to have encouraged us previously to take a rather reckless approach to our personal information, we are now starting to see a backlash against privacy intrusion. Although it is almost impossible to prevent your personal data being accessed, exercising caution in using social media sites seems to be a good way to start protecting ourselves.

If you would like legal advice about any of these issues, or any other issues relating to terms and conditions of the use of websites or social media networks, please contact San Chima at +44 (0) 207 790 2000 or schima@adamslaw.co.uk.

 

Death in Service benefits – Fox v British Airways

The case of Fox v British Airways plc concerned entitlement to death in service benefits where the recipient had died shortly after being dismissed for medical incapacity. Death in service benefits amounting to some £85,000 would have been paid to the deceased’s estate if he had still been employed at the time of his death. A claim for unfair dismissal and disability discrimination was launched by the father of the deceased as an attempt to obtain compensation for the loss of the death in service benefits.

The facts

Mr Fox was employed by British Airways. He was dismissed in 2010 following a six-month absence from work due to an ongoing back condition, and as a result of having exhausted his sick pay entitlement. The reason for the dismissal was given as medical incapacity. Mr Fox’s condition was serious but not fatal. However, five days after he was dismissed he underwent an operation and three weeks later he died from complications.

The claim

The claim for compensation for the loss of death in service benefits was brought by Mr Fox’s father, on the basis that if he had not been unfairly dismissed and discriminated against he would still have been employed and so his estate would have been entitled to the death in service benefits.

The Employment Tribunal found that because the death in service benefits were not a benefit to Mr Fox but to his dependents, they would not form part of the calculation of his loss if the unfair dismissal and discrimination claims were successful. However, the Employment Appeals Tribunal found the opposite – that the benefits would form part of the calculation of loss.

The Court of Appeal decision agreed with the Employment Appeals Tribunal. It was found that although Mr Fox had no claim to the death in service benefits in his own right, it was part of the value of his employment contract and so should be treated as ‘pecuniary loss’ to Mr Fox himself.

On the matter of quantifying the loss of the benefit, the Court of Appeal stated that ‘other things being equal’ deciding the amount would depend on the cost of obtaining the equivalent death in service benefits in the market. However, because at this point Mr Fox was now deceased, this was not possible. As a result, if the claim for unfair dismissal and discrimination succeeded, the measure should be that Mr Fox’s dependents be put in the same position that they would have been in had he not been unfairly dismissed i.e. entitled to the £85,000 payout.

The issue to note here for employers is that if an employee dies shortly after being dismissed there is the possibility of his or her estate recovering death in service benefits compensation, depending on the circumstances. Liability would need to be established and this can be tricky, particularly as the employee is deceased. However, as Mr Fox’s case shows this is possible and so is something that employers should be aware of.

If you would like legal advice about any of these issues, or any other issues relating to death in service benefits or unfair dismissal, please contact San Chima at +44 (0) 207 790 2000 or schima@adamslaw.co.uk.