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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 This email address is being protected from spambots. You need JavaScript enabled to view it..
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“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.FactsAvonwick 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 This email address is being protected from spambots. You need JavaScript enabled to view it..
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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 This email address is being protected from spambots. You need JavaScript enabled to view it..
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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 ControversyA 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 (This email address is being protected from spambots. You need JavaScript enabled to view it.)
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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 AmountThe 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.ProportionPrior 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.ValueThe 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 PowersCaseworkers 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.
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