HM Treasury (HMT) has just published The Consumer Credit (Enforcement, Default and Termination Notices) (Coronavirus) (Amendment) Regulations 2020 which make changes to the content and form of Default Notices set out in the 1983 Regulations.
These come into effect on 2 December 2020. Firms will have 6 months thereafter to implement them.
Continue ReadingThe Corporate Insolvency and Governance Act 2020 (CIGA) came into force on 26 June 2020 and introduced some permanent reforms to corporate insolvency law together with some temporary provisions required as a result of COVID-19.
The reforms have been described as “the most significant change in English insolvency laws for commercial lawyers in a generation”.
We will focus on the impact of the new legislation on invoice financiers both in terms of their relationships with clients and in enforcing debts against clients’ debtors.
We will firstly examine the permanent changes before reviewing the temporary changes and ending with some thoughts on the overall effect of the reforms on the invoice finance sector.
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Jonathan Berkson
Back in 2004, Porter Capital Corporation (“Porter”), a US finance Company based in Birmingham, Alabama, financed a US corporation (“Corporation”) via an invoice finance facility. To secure the finance, they took guarantees from three guarantors, one of whom lived in London and was a co-owner of a valuable Knightsbridge apartment on Hyde Park in London and shares in a family company. The finance documentation was expressed to be under Connecticut law.
By 2008, things were going wrong for the Corporation and by March 2010 just prior to the Corporation’s Chapter 7 Bankruptcy in the US, Porter wrote making its demand for the account shortfall against the finance agreement’s three guarantors.
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SolicitorChristopher joined Bermans in September 2020 and is a Solicitor in the Insolvency team, having qualified following completion of his training contract with Bermans in 2022. He previously studied Law at the University of Liverpool.
Christopher has experience with assisting in contentious and non-contentious matters, acting for individuals, companies and IP’s.
The matters that Christopher has experience with include, but are not limited to, the following:
He lives in Cheshire and plays 7-a-side football and likes to spend time with his friends and family.
T: 0161 827 4613
For a dismissal to be fair, an employer needs to have a potentially fair reason to dismiss – such as misconduct, redundancy or ‘some other substantial reason’ (SOSR) – and the decision to dismiss must be within the range of reasonable responses. In cases where an employer’s reputation may be at risk, conduct and SOSR can overlap. The Employment Appeal Tribunal has looked at this issue recently in K v L.
A teacher was charged with possessing indecent images of children, but he denied being responsible for them. He was suspended from work pending investigation. The Procurator Fiscal (the Scottish equivalent of the CPS) decided not to prosecute. The police evidence provided to the employer was redacted beyond use, so it wasn’t given to the disciplining officer. The employer concluded that there wasn’t enough evidence to show the employee was responsible for downloading the images. However, he was dismissed for misconduct and the potential risk he posed to children. The dismissal letter also cited the risk of reputational damage which hadn’t been part of the hearing.
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In order to qualify as a disability under the Equality Act 2010, an impairment must have a substantial and long-term adverse effect on an individual’s ability to do day to day activities. In order to be long term, a substantial adverse effect must have lasted, or be likely to last, at least 12 months, or be likely to recur.
A tribunal will look at medical evidence and the employee’s own witness evidence about the effects of their impairment. But they will also look at other evidence, including the employer’s, if that is relevant.
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The current uncertainty around jobs can cause friction between employers and their employees. In such times, many employees call on their trade unions for support. Unions are keen to stamp their mark, not only to protect existing members but to capitalise on an industrial crisis and turn it into a recruitment drive. Section 161 of the Trade Union and Labour Relations Act 1992 allows an employee to claim interim relief if they believe they have been automatically unfairly dismissed due to trade union membership or activities. If an employee can show they are likely to succeed in a claim for unfair dismissal due to trade union activities, then a tribunal will reinstate them pending a full hearing of the case.
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This month the High Court has looked at the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 and their relevance in internal disciplinary proceedings. In Kathryn Hopkins v HMRC, the employee was arrested in connection with various offences, including sexual offences and an offence which took place in a work vehicle. As required by her contract of employment, she told her manager about the arrest. The manager then shared that information with various internal departments, including HR (in relation to pursuing disciplinary proceedings) and the press office (to manage any negative publicity). The employee was suspended pending a disciplinary process for gross misconduct. The employee’s contract of employment included terms involving appropriate behaviour outside of work and conduct which could give rise to queries about honesty and trust.
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The EAT has issued some guidance on written pleadings which will make employers breathe a sigh of relief. All too often, employment tribunal claims run to several pages, documenting several years of alleged ill treatment, often without stipulating a single legal claim.
The EAT has provided its wisdom in a case called C v D, where the employee had brought a claim for discrimination which ran to 37 paragraphs over 6 pages.
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Sometimes working relationships just break down and can’t be repaired. The employer may feel that it is left with no alternative but to dismiss an employee who simply cannot work effectively with a manager or key colleagues.
A dismissal on these grounds can fall within the potentially fair category of ‘some other substantial reason’ and the question will then be whether the employer has behaved reasonably.
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