It is also hoped that the licence procedure will be simplified, with the creation of “unlimited music events bundles” for a flat annual fee and the simplification of how background music charges are assessed.

The consultation paper contains two options for consideration:

Option one: an initial fee of between £150 and £250 for a claimant to begin a claim, with an additional fee of between £250 and £1250 if the claim goes to a hearing, with no limit to the maximum award; or

Option two: a single fee of between £200 and £600 – though this would limit the maximum award to £30,000 – with the option of an additional fee of £1,750 for those who seek awards above this amount.

In both options, the employment tribunal would be given the power to order the unsuccessful party to reimburse the fees paid by the successful party. At a time when employment tribunal claims are rising rapidly, the Government hopes that a fee system will encourage both sides to mediate or at least give more consideration to the strength of their case prior to launching legal action, thus saving time and (particularly) taxpayers’ money.

The Government says that introducing fees will bring employment tribunals into line with the civil courts, where claimants already pay a fee to use the service.

When the Government first mooted the idea of fees, there were concerns that those people who could not afford the fees would no longer have access to justice. Click here for more details. However, the Government has now allayed these fears, stating that it will fund a system of fee remissions (or waivers) for those who cannot afford to pay, in a similar way as the civil court system.

The consultation will close on 6 March 2012, with a view to introducing the fees in either 2013 or 2014. The date is dependent on which option the Government decides to adopt. If, following this consultation, the Government decides to implement option 1, fees would be introduced in 2013. If it decides to implement option 2 , it would require primary legislation, which would probably not be passed until 2014.

In the consultation paper, entitled Technical reforms of council tax, the Government sets out a number of practical proposals which it believes will help local councils keep overall council tax levels down for ordinary people. One of these proposals suggests giving local councils the flexibility to remove council tax relief on second homes and empty homes.

At present, council tax discounts on second homes range from 10 to 50 per cent, depending on where the property is situated. There are a range of discounts of up to 100 per cent for empty homes. However, the Government has made it clear that it has no plans to change the rules on council tax relief for homes that are left empty due to “special circumstances” (e.g. because a person has moved into a hospital or care home, has died, or has moved out to provide care to another person.)

The consultation also includes proposals to review the “double taxation” of self-contained annexes to family homes (e.g. ‘granny annexes’.) Currently, council tax inspectors treat such annexes as a separate property, meaning families get charged twice for the same single property they occupy.

The consultation closes on 29 December 2011.

These changes could affect all commercial property owner-occupiers and investors.

HMRC intends to do the following:

1. Require all taxpayers to claim capital allowances within one or two years of when the money was spent, or no capital allowances claim will ever be allowed for any current or future owner. This will apply to all new construction expenditure (e.g. new-builds, extensions, refurbishments, etc) as well as purchases of second-hand property. Historic expenditure made before April 2012 is also likely to be subject to the new rules.

2. Require the buyer and seller of a second-hand building including fixtures to submit a formal ‘Record of Agreement’, showing how much of the purchase price is attributable to the fixtures (and notify this to HMRC within one or two years.)

If these changes do go ahead, buyers of plant and machinery fixtures will need to ensure that they notify HMRC of the expenditure within the required time limit in order to claim capital allowances. Also, the buyer and the seller will have to agree on the sale value of the fixtures within the requisite time period if the buyer is to be able to claim capital allowances in relation to the fixtures.

Draft legislation will be included in the Finance Bill 2012, with the changes expected to take effect from April 2012.

As a matter of urgency, if you have not yet claimed for fixtures, or believe that capital allowances might have been under-claimed, please contact either me at david.marsden@mablaw.com, or our property tax specialist Shimon Shaw at shimon.shaw@mablaw.com, as any additional claim should be made before the rules change in April 2012.

The draft guidelines require that certain information should be provided to end users by:

-      national regulatory authorities (Ofcom in the UK), which are required by law to ensure that the relevant information is provided;

-      Internet services providers (ISPs), which are required at law to provide the relevant information; and

-      other third parties such as price comparison websites.

The information provided by the above entities should be formed on the basis of a common terminology to avoid end user confusion. The information provided relates to download and upload speeds (that are both actual and advertised), service availability, service quality, usage limitation (including data caps, download limits and fair use policies) and any traffic-management techniques used by ISPs to avoid network congestion.

The guidance is draft only – BEREC has invited comments from interested parties by 2^nd November 2011 – but, once finalised, will be a foundation block for ISPs in relation to how they provide their services.

The OFT’s response to the consultation can be found here: http://www.oft.gov.uk/shared_oft/consultations/consumer-landscape/Consumer_Landscape.pdf.

Under the Licensing Act, event organisers must apply for a licence in order to provide ‘regulated entertainment’, such as putting on an indoor sporting event, play, exhibition or music event. Licences are required under the Licensing Act in order to achieve the ‘licensing objectives’ which are:

-       preventing crime and disorder;

-       preventing public nuisance;

-       protecting children from harm; and

-       public safety.

The Government proposes to amend the definition of ‘regulated entertainment’ so that fewer event organisers require licences, making event organisation cheaper for small businesses and easier for voluntary and community organisations. However, the proposal is to retain licensing requirements for ‘regulated entertainment’ where audiences are expected to be in excess of 5,000, as those events are more likely to threaten the ‘licensing objectives’ listed above.

The consultation is taking place in order to obtain industry responses on whether or the not the licensing requirement should be removed. Full details of the consultation as released by the Department for Culture, Media and Sport can be found here. The consultation ends on 3 December 2011.

Section 15 of the Commons Act 2006 provides that anyone can apply to register land as a town or village green where “a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years.” In the past, those who have objected to a development on open land have been able to delay it (or even prevent it) by making an application to have the land registered as a town and village green (TVG application).

Under the proposals, the criteria for registration would remain the same, but new restrictions would be placed on land that can be the subject of a TVG application.

Defra’s proposals include the following:

1. Giving the registration authorities (RAs) the power to reject TVG applications at an early stage if insufficient evidence has been submitted, or if there is strong evidence that the application would fail to satisfy the criteria for registration;

2. Allowing landowners to make a statutory declaration, registrable with the RA and renewable every ten years, that any use of land is with their permission. This would prevent any use of land “as of right”;

3. The introduction of a ”character” test, so that only land which is unenclosed by fencing, open (i.e. not covered in dense scrub, trees and vegetation) and uncultivated would be eligible for registration;

4. Taking into account whether the land that is the subject of the TVG application is in the planning system. Land which is subject to a planning application or planning permission, or which was designated for development (or as a green space) in a local or neighbourhood plan, could not be registered as a TVG; and

5. Requiring applicants to pay an application fee. Each registration authority would be able to set its own fee, subject to a prescribed ceiling of £1,000. Fees could be refundable if the application were granted. This may deter some applications that are simply designed to delay developments.

The proposals in the consultation will not prevent the protection of any existing registered greens, and any changes to the registration system will not bring the designation of new greens to an end. However, the restrictions will be welcomed by landowners and developers, who have had to put up with costly delays when faced with TVG applications.

The consultation closes on 17 October 2011 and applies to England only.

However, other countries in the European Union (EU) have implemented the Directives with different interpretations. The UK only exempts those acts specifically required to obtain marketing authorisation of a generic drug. Germany provides an exemption in relation to any medicinal product (not just a generic drug) in any country (not just within the EU). Spain, meanwhile, has a tighter restriction on the exemption in a similar way that the UK does. The variation has come about largely due to the EU Directives being interpreted differently by different national courts in view of national case law.

The IPO has therefore started a consultation with stakeholders to obtain evidence of how the law should evolve in the UK, as there are concerns that stakeholders are avoiding holding clinical and field trials in the UK due to the tighter regulatory framework compared to some other EU countries. Further information in relation to the consultation, including the list of questions for stakeholders to respond to as part of the consultation, can be found at http://www.ipo.gov.uk/pro-policy/consult/consult-live/consult-2011-bolar.htm .

The responses to the consultation must be received by the IPO by 31 July 2011, and results of the consultation are expected in autumn 2011.

There are four elements to the proposals:

1. A system of flexible parental leave;

2. A right for all employees to request flexible working;

3. Amendments to the Working Time Regulations; and

4. Measures to encourage equal pay

The proposals

1. Flexible Parental Leave

These proposals, which are not anticipated to come into force until 2015, will essentially mean that parents will share parental leave.

* Retain 18 weeks’ maternity leave and pay exclusively for mothers around the time of the baby’s birth; and

* Reclassify the existing entitlement to a further 34 weeks’ maternity leave as “flexible parental leave”. Four weeks will be exclusive to each parent and will be taken in the first year, with the remaining 30 weeks available to either parent.

The consultation also considers (1) whether parental leave could be taken in “chunks” (i.e. broken into two or more periods), or on a part-time basis; (2) whether the age limit for taking unpaid parental leave should be increased from the age of five to either eight, 12, 16 or 18; and (3) whether a new statutory right should be designed to give fathers the right to paid leave to attend a specific number of ante-natal appointments.

2. Flexible Working

The consultation proposes that the right to request flexible working should be extended to all employees.

* Extend, by 2013, the right to request flexible working to all employees who have been working for their employer for 26 consecutive weeks (and not just to  those with children under 17 years of age, or disabled children under 18 years of age);

* The existing statutory procedure for considering requests will be replaced by a new duty on employers to consider requests “reasonably.” The Government will consider publishing a statutory code of practice for businesses to give employers guidance on how to handle requests; and

*Allow – but not require – employers to prioritise competing flexible working requests to take account of the employees’ personal circumstances. This would mean that employees making a request due to parenting or caring responsibilities could be given higher priority than those making a request for other lifestyle reasons.

NB: There are no plans to alter the current eight business reasons for a business to turn down a flexible working request.

Currently, employees are only permitted to make one request for flexible working in any 12-month period. However, the consultation seeks views on permitting an additional request within 12 months if the employee’s original request states it is only expected to be a temporary arrangement.

3. Working Time Regulations (WTR)

The proposed changes to the WTR, anticipated to be made in 2012, enshrines recent European Court of Justice case-law. This case-law established that employees who cannot take all their annual leave entitlement, due to sickness absence or maternity/parental leave, must be permitted to carry it forward into the following annual leave year.

The Government also proposes that:

* Where someone has been on sick leave, employers may limit an employee’s ability to carry over annual leave to the four weeks required under the WTR. The employee would therefore lose the extra 1.6 weeks they receive under the WTR;

* Amend the WTR to permit the carry over of annual leave due to maternity, paternity, parental or adoption leave – this will include the full 5.6 weeks of leave entitlement per year; and

* Employers may insist that annual leave not taken due to sickness absence must be taken in the current leave year, where possible, rather than being carried over. Employers may also defer that annual leave until the following year if it can  be justified to be in the interest of the business.

Views are also sought on increasing flexibility for employers. For example, employers could be allowed to ‘buy out’ the additional 1.6 weeks of annual leave, or require employees to defer that annual leave until the first six months of the following leave year, if this can be justified to be in the interest of the business.

4. Equal Pay

The consultation considers imposing a mandatory equal pay audit on those employers who have been found by an employment tribunal to have breached equal pay legislation. The employment tribunal would be obliged to order the audit unless it believed it would not be productive to do so – e.g. if an audit had been conducted in the past three years, or if the employer has other appropriate means of ensuring a non-discriminatory pay structure.)

The consultation also seeks views on the appropriate sanction for an employer’s failure to comply with an audit requirement.

The Government has made clear in the consultation paper that there will be exemptions for micro-businesses (i.e. those with fewer than ten employees) and new start-up businesses.

All responses to this consultation are required by 8 August 2011.

The areas under consideration are:

1. Compensation for discrimination;

2. Collective redundancy consultation periods; and

3. TUPE.

However, the announcement does not set out any proposals; it merely confirms that the Government will “look in detail at the case for reforming” these areas.

Although there is no commitment to change, the Government has provided some brief details on why the Government is looking at the areas in question.

1. Compensation awards for discrimination

Discrimination compensation is currently uncapped. Employers have “expressed concern” about (1) the high levels of compensation that are sometimes awarded, (2) the lack of certainty about what they may be required to pay out, and (3) vexatious litigants, who are encouraged to make claims against employers due to the high levels of compensation that can be awarded.

2. Collective redundancy consultation periods

Currently, if an employer wants to make more than 100 employees redundant in a 90-day period, he or she must consult on the issue at least 90 days before the first dismissal takes effect. However, employers feel that this consultation period is too long, as it (1) hinders flexibility when restructuring, and (2) forces struggling employers to keep paying employees after it has become clear that they should be dismissed.

3. Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE)

These Regulations protect employees’ terms and conditions of employment when a business is transferred from one owner to another. Despite the Government stating in November 2010 that it had no plans to reform TUPE, employers are concerned that the Regulations are (1) ‘gold-platted’ (i.e. they went further than required to do so by the EU’s Acquired Rights Directive when they were transposed into UK law), and (2) “overly bureaucratic.”

The Government’s review will begin later this year; however, it is debatable as to whether any significant reform will happen, as these three areas are governed to some degree by EU law and any changes must comply with it.

The Law Commission is looking to enable consumers to cancel and claim a refund if they return or reject goods or services within three months. The Law Commission is looking for responses to the consultation by 12 July 2011, and it can be found here: http://www.justice.gov.uk/lawcommission/docs/cp199_consumer_redress.pdf.

1. Provide a summary of observations received from leaseholders in response to the landlord’s notice explaining why the proposed works are necessary;

2. Make all estimates for the works obtained available for inspection in accordance with the landlord’s notice; and

3. Allow the tenants 30 days to inspect the estimates and make observations on the same. Indeed the landlord had indicated that it had already awarded the building contract.

The landlord applied for dispensation from compliance. Although the LVT is permitted to dispense with the consultation requirements “if it is satisfied that it is reasonable to dispense with the requirements”, the LVT held that the landlord’s failure to consult had caused substantial prejudice to the tenants. The LVT also found that the disproportionate financial consequences for the landlord could not be taken into account and, as such, the liability of the tenants would be limited to £250 each.

The landlord appealed to the Lands Tribunal which dismissed the application. Appeal was made to the Court of Appeal.

Decision

The appeal was dismissed. The court decided:

1. The financial effect of the grant or refusal of dispensation was irrelevant to the exercise of the court’s discretion, because it would impose a burden on the LVTs if they had to undertake inquiries of the financial circumstances of landlord and tenants.

It would not make sense if the higher the service charge the more readily dispensation were given.

The focus of the legislation was on the consultation requirements and not the consequences of non-compliance.

The grant of dispensation might be appropriate where the importance of the consultation was not undermined (for example where the landlord needs to undertake emergency works; only a single specialist contractor is available; or a minor breach of procedure causes no prejudice to the tenants);

2.  A less rigorous approach might be justified for tenant owned/controlled landlords; and

3. Significant prejudice to the tenants was an important issue when exercising the discretion. The landlord’s non-compliance with the consultation requirements constituted a serious failing and caused the tenants serious prejudice. The landlords incorrect statement that it had already awarded the building contract was not just a technical, minor or excusable oversight.

Comment

The landlords should ensure that they comply with the service charge consultation requirements. The consequences of failing to comply can be costly. In this instance the tenants paid £1,250 towards the total cost to the landlord of the works amounting to £270,000. The court made it quite clear that the circumstances in which dispensation would be granted in favour of the landlord would be very limited.

The consultation paper, Relaxation of planning rules for change of use from commercial to residential, includes proposals to amend the Town and Country Planning (General Permitted Development) Order 1995, so that it will be permissible to allow a change of use from Class B (business and industrial uses) to Class C3 (dwelling houses) without having to obtain planning consent.

Under these proposals, more land would become available for housing, by permitting empty commercial buildings to be converted into new homes. This move follows the Chancellor’s announcement in his recent Budget that the Government would consult on proposals to increase the categories of changes of use that can be made without the need to apply for planning permission.

The consultation paper seeks views on a number of areas, including:

1. Whether a change from use class B1 (offices, research and development, and light industry) to C3 (dwelling house) should be allowed without express planning permission (subject to effective measures being put in place to mitigate the risk of homes being built in unsuitable locations);

2. Whether a change of use from classes B2 (general industrial use not within class B1) and B8 (storage and distribution) to C3 should be classed as permitted development (subject to effective measures being put in place to mitigate the risk of homes being built in unsuitable locations); and

3. Whether current permitted development rights that allow a change from class A1 (shops) and A2 (financial and professional services) to a mixed use (including one residential flat) should be widened to allow for more than one dwelling.

The consultation paper also asks for comment on whether the Government has identified all the possible problems/issues that could arise from widening permitted development rights, and what measures might be needed to mitigate against those problems.

The closing date for responses is 30 June 2011.

Some recent cases brought before the European Court of Justice have related to whether the restriction of access given to gaming operators to certain EU countries is a breach of the single market protection granted by EU law. This resulted in certain Member States being investigated by the European Commission as it seemed that their online gaming regimes were not compatible with EU law, although these investigations stopped last year when the European Commission announced its intention to publish a Green Paper on the issue.

It is hoped that the Green Paper will lead to regulation of the EU online gaming market as a whole, but critics within the industry have expressed concern that this will not happen – the argument is that the current online gaming market is so fragmented that it needs widespread reform rather than regulation. These industry insiders will have to take a punt that their contributions to the consultation will make the difference for which they strive.

Anyone wanting to respond to the consultation should do so by 31 July.

Section 149 of the Equality Act 2010, which received Royal Assent in April, states that public authorities subject to the general equality duty must have regard to the need to (1) eliminate unlawful discrimination, harassment and victimisation; (2) advance equality of opportunity between different groups; and (3) foster good relations between different groups. Section 153 gives ministers the power to impose specific duties through regulations.

The consultation paper proposes the following:

1. Regulations on the specific duties designed to help public bodies meet the requirements of the general equality duty; and

2. The public bodies that will be subject to the general and specific duties.

The specific duties

The Government proposes the following specific equality duties:

1. Transparency. Public bodies will be required to publish equality data relating to their workforces and the services that they provide;

2. Workforce transparency. Public bodies with 150 or more employees will be required to publish, at least annually, data on equality in their workforces (e.g. the gender pay gap; the proportion of staff from ethnic minorities; and the proportion of disabled employees in the organisation);

3. Transparency in public service provision. Public bodies will be required to publish, at least annually, data setting out how they are promoting equality. This will enable citizens to compare public bodies’ equality performance and, where possible, choose between providers; and

4. Transparency about impact on equality. Public bodies will be required to set equality outcome objectives which are specific, relevant and measurable. These objectives will also enable the public to see whether a public body is meeting its own standards and achieving all that it sets out to. Public bodies should review their approach at least every four years.

Which public bodies will be subject to the equality duties?

The consultation paper states two ways that a public body can become subject to the equality duties:

• By being listed in Schedule 19 to the Equality Act 2010; and
• By carrying out public functions.

NB: Annex 5 of the consultation paper proposes adding further public bodies to those listed in Schedule 19. However, some of these bodies will only be subject to the general duty in relation to their public functions.

What happens next?

Responses to the consultation must be made by 10 November 2010, with the Government aiming to publish the results approximately three months later. The Government then proposes to bring the general and specific equality duties into force through regulations in April 2011; however, public bodies will be given a further year before they have to publish their equality objectives and state whether they are being met. Guidance explaining the general and specific duties, and what public bodies will need to do, will be published by the Equality and Human Rights Commission before the regulations come into force.

Our employment team will be closely monitoring the situation, and we will summarise the Government’s response in due course. In the meantime, if you have any concerns or questions about this or anything employment-related, please contact Adam Fuge at adam.fuge@mablaw.com, or Michael Delaney at michael.delaney@mablaw.com.

The Government is hoping to raise about £175m a year from this tax, which is due to start for the year commencing April 2010. Whether the tax will actually happen, though, depends on the outcome of this year’s General Election. The Conservatives would like to scrap the tax if they win. They would prefer to see business get as far as it can, and only consider tax and public spending once market providers such as BT and Virgin Media have finished their commercial roll-outs.

The consultation is open for anyone to comment until 12 February 2010 and can be found here: http://www.hm-treasury.gov.uk/d/consult_landlineduty.pdf.

The proposals include forcing companies to allow customers to pay off their most expensive debts first; increasing the minimum monthly repayment level to encourage customers to pay off their debt faster; preventing companies from raising customers’ credit limits without being asked; and imposing tighter rules on increasing interest rates on existing debt.

The consultation ends on 19 January 2010.