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Holiday Pay and Commission: are you getting it right?

The recent European Court Justice (ECJ) decision made a number of employers sit up and take notice due to the way in which the ECJ dealt with the calculation of holiday pay and commission. Are you getting it right?

Employers will know that the Working Time Regulations (WTR) state that all workers receive 5.6 weeks paid annual leave throughout the year. However, it does not specify how statutory holiday pay should be calculated. Theoretically, this is left to national legislation or practice.? For each week

Scottish Care in the Community to lose NHS funding

From April 2015, Scottish care in the community will lose full NHS funding. Patients with complicated long-term healthcare problems will no longer have access to full NHS funding if they are cared for in the community as opposed to in hospital.

Currently, the ?NHS Continuing Healthcare? scheme operates so that patients with chronic conditions being treated in a care home setting or in their own home are entitled to have their care funded by the NHS.

This operates in addition to free personal care which

Are actions of Division and Sale fair?

Are actions of Division and Sale fair?

So are actions of division and sale fair? If one or more persons have title to a property in Scotland all of them need to consent if there is to be a sale of that property. If the parties cannot agree on a sale or one or more of them simply 'disappears' then Scots law provides a remedy for a co-owner who wants to dispose of their interest. The remedy is an action of Division and Sale. In circumstances where the property cannot be divided,

Could your Power of Attorney be invalid?

Could your Power of Attorney be invalid? We?were recently consulted by two clients wishing to apply for Guardianship of Mrs W, who had lost capacity to act on her own behalf. The application was sent to The Office of the Public Guardian (?OPG?), who advised that they already held a Continuing Power of Attorney for Mrs W on their register, granted in favour of a Bank in 2008. Mrs W had never mentioned this and the Applicants were unaware of its existence. Although the Applicants

Power of Attorney: Banking on better service

Power of Attorney: Banking on better service

A Power of Attorney is often essential when a loved one loses mental capacity or is vulnerable is some way, as it is often the case that they are no longer able to make their own decisions.

This can be a distressing and stressful time for all concerned. However, if a person has a Power of Attorney (POA) already in place it can help ease these pressures.

A POA is a legal authority given by one person to one or more individuals allowing them to

Land and Buildings Transaction Tax in Scotland

The Land and Buildings Transaction Tax (Scotland) Act 2013 (?LBTT Act?) might not sound exciting, but as the first tax Act to be passed by a Scottish Parliament in over 300 years it is certainly noteworthy for those with an interest in Scottish residential or commercial property.

Land and Buildings Transaction Tax (?LBTT?) is one of two areas of taxation over which the Scottish Parliament has derived legislative competence from the Scotland Act 2012, the other being Landfill Tax. It is intended that LBTT replace

Bedroom Tax, the final chapter?

April 2013 saw the introduction of changes to housing benefit which were dubbed the ?bedroom tax?. Over the course of the last 14 months our blogs have provided information on the introduction of these rules, the challenges to them and the cases which have been decided by tribunals. So is this Bedroom Tax, the final chapter?

During the last year, the Scottish government complained that they were being prevented from dealing with the impact of the bedroom tax by the rules which affected Discretionary Housing

Dismissing employees: what can we learn from Moyes?s dismissal?

Dismissing employees: What can we learn from the very public sacking of Manchester United manager David Moyes? ?This has made me think about the manner in which many employers dismiss their staff. Although it can often seem like the best for both parties if the employment relationship can come to an end swiftly, it is important that any dismissals of employees are done so in line with correct procedures.

Although such quick and public dismissals are sadly seen as the norm in footballing circles, employers

Public Procurement Changes in Scotland

In recent years there have been a number of public procurement changes in Scotland, most notably the introduction of the Procurement (Reform) Scotland Bill in October 2013 and three new EU Directives in February 2014.?Public procurement in the UK and the rest of the EU is governed by European Directives and Regulations which are then implemented into national law.

The three new EU Procurement Directives, which deal with public contracts, utilities contracts and concessions, will formally come into force on 17 April 2014. Member states

Does your tenancy agreement enable tenants to keep pets?

Does your tenancy agreement enable tenants to keep pets? In a case that attracted considerable media coverage, we were successful in a court action on behalf of one of our housing association clients which sought to remove pets from one of their tenant?s properties.

We were instructed to raise the action as our clients were made aware that a tenant was keeping dogs in their property without notifying them.

Our client?s tenancy agreement clearly states that tenants must obtain the prior consent from the landlord

Summer of sport - what this means for employers?

Although it may not seem like it, with the endless supply of grey skies, but the summer of sport is here! And this summer is shaping up to be an exciting one in terms of sporting events. The Commonwealth Games, Ryder Cup, Wimbledon and the World Cup are taking place, to name but a few, with the former two events happening on home turf! But what could this mean for employers?

Whilst these events are exciting, it is important for employers to think of how

Flexible working employers guide

Some recent discussions has brought the matter of flexible working requests to the forefront of my mind, in particular how employers can get this wrong when a request is made.

The key points around flexible working requests are:

  • Employees must have 26 weeks continuous employment at the date the application is made.
  • Employers have statutory duty to consider applications.
  • Once agreed it becomes a permanent change to the contract of employment.
  • An employee has the right to appeal if necessary against the outcome.
  • An agreement

The Housing (Scotland) Bill ? Regulation of Letting Agents

Regulation of letting agents is sought by the Scottish Government through a new regulatory framework via the Housing (Scotland) Bill.

Currently there is no statutory regulation of letting agents in Scotland, which means that anyone can set up a letting agency, whether or not they have the appropriate experience or qualifications to do so.

The Bill seeks to introduce a formal register of letting agents, which aims to promote high standards of service and levels of professionalism, as well as giving landlords and tenants easy

What is an executor in a Will?

The death of a loved one can be a very stressful and confusing time.? At a moment when you are grieving you may also be faced with making important arrangements, such as what is an executor in a Will?

We know how hard it is to navigate your way through the process at such an upsetting time so here is a brief outline of the key issues you are likely to face.

Where do you start?

When someone dies there are immediate issues to deal

Changes to Industrial and Provident Societies in 2014

Organisations which operate primarily for the benefit of the community, such as Registered Social Landlords, have the opportunity to register under the Industrial and Provident Societies Act, rather than under the Companies Acts. A number of changes aimed at modernising the law which applies to Industrial and Provident Societies are set to come into force in 2014.

From 6th April 2014:

  • The capital limit on withdrawable shares held by each member of an Industrial and Providential Society is set to increase from ?20,000 to

High Hedges (Scotland) Act comes into force 1 April 2014

The High Hedges (Scotland) Act comes into force on 1st April 2014 for?those who are fed up with their neighbour?s overgrown privet blocking their sunlight:

Under the High Hedges Bill, individuals will be able to approach their local authority for assistance if they are unable to come to an amicable solution with their neighbour, in circumstances where they feel that a ?high hedge? on neighbouring land is adversely affecting the reasonable enjoyment of their property.

The definition of a ?high hedge? includes a hedge

Is the Scottish Housing Market finally warming up?

As well as longer days and warmer weather, Spring traditionally brings with it an upturn in the Scottish housing market. However we all know that since the economic downturn hit in 2008, the number of properties changing hands has declined rapidly and the market has been stagnant for many years.

Signs of life?
Although the economy is yet to return to its pre-?Credit Crunch? state, signs of change started to show in the latter half of 2013 as growth and stability began to return to

Are you ready for mandatory Early Conciliation?

Are you ready for Acas' mandatory early conciliation service that launches on the 6th April 2014 and will change the way in which individuals raise an Employment Tribunal claim?

Employees contemplating raising an Employment Tribunal claim, when issues cannot be resolved in the workplace, will be required to contact Acas first and engage in mandatory early conciliation (EC) with Acas and their employer.

Currently when a claim is made to the Employment Tribunal, the secretary of the Tribunal notifies Acas of the claim and

Can an employer reject the decision of an appeal panel?

Can an employer reject the decision of an appeal panel? A decision of the Employment Appeal Tribunal (EAT) has confirmed that there will be circumstances where it is fair for an employer to reject the decision of an appeal panel and proceed to dismiss an employee. We take a look at the case and how this may affect employers in a similar situation.

In the case of Kisoka v Ranpinyotip T/A Rydevale Day Nursery, the claimant was suspected of starting a fire in her workplace.

Housing Bill ? changes to Short Scottish Secure Tenancies

The Housing Bill is proposing significant changes to the law relating to many aspects of social housing including Short Scottish Secure Tenancies.

One significant part of the Housing (Scotland) Bill deals with proposed changes to the regime of Short Scottish Secure Tenancies (SSSTs).

The Housing Bill proposes:

  • New grounds for creating SSSTs
  • New provision for converting SSTs to short SSTs
  • New rules on initial length of certain SSSTs
  • New rules on extending the initial period
  • New rules about eviction from certain SSSTs

New grounds for

Tenancy Deposit Scheme - Scottish landlord loses appeal

Tenancy Deposit Scheme - Scottish landlord loses appeal against a decision made at Edinburgh Sheriff Court to hold them liable to pay their tenant three times the deposit taken, after their tenant took them to court over having failed to lodge their deposit in a tenancy deposit scheme.

In the case of Tenzin v Russell & Clark, the landlords had failed to pay a deposit into a tenancy deposit scheme. There was no dispute that they had failed to meet their obligations under the Regulations.?

What is a limited company?

What is a limited company? The limited company is the most common business vehicle in use in the UK. It must be incorporated (registered) at Companies House and, once incorporated, the limited company becomes a separate legal entity, distinct from its shareholders, directors and employees.

In considering whether this is the best business vehicle for you, you must first know the basics of a limited company.

On incorporation under the Companies Act 2006, a limited company is required to have a Memorandum defining the company?s

Who legally owns the Attic Space in Scottish Tenements?

Who legally owns the Attic Space in Scottish Tenements?

Who legally owns the attic space in Scottish Tenements? The ownership and maintenance of the attic space and roof of a tenement block can cause significant confusion for flat owners. Despite statements to the contrary, the legal position relating to these parts of the tenement has not been altered significantly following the enactment of the Tenements (Scotland) Act 2004.


The key starting point when seeking to determine ownership of the "common parts" of a tenement will be to consult the title deeds for all flats

Consumer Credit ? What constitutes ?Credit? for housing associations?

The Consumer Credit Act 1974 (as amended by the Consumer Credit Act 2006) regulates consumer credit. This is an important area that Registered Social Landlords (RSLs) must be aware of when providing any form of credit to tenants.

What is ?any other form of financial accommodation??

A consumer credit agreement is an agreement between an individual (the debtor) and any other person (the creditor) by which the creditor agrees to provide the debtor with credit. ?Credit? is defined in the Act as a cash loan,

Alterations to TUPE ? are you aware of key changes?

As many people will be aware, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) are in place to provide employees with protection when their employment is transferred to another employer.? The coalition government recently carried out a consultation regarding alterations to TUPE and various proposals to change the regulations were recommended.? On 31 January 2014 these changes will be introduced via the Collective Redundancies and Transfer of Undertaking Regulations 2014, although not all of the changes will take effect on that date.? Outlined

TC Young support Sally Magnusson memoir

We are?pleased to be supporting broadcaster Sally Magnusson in the launch of her new book, ?Where Memories Go: Why Dementia Changes Everything?. The book discusses her mother?s struggle with the illness and her family?s experience and gives a very personal insight into the effects of dementia on Sally?s family. Alzheimer Scotland have organised a ?panel of experts for an open debate and panel discussion, chaired by Sally, to further explore the areas and challenges raised in the book, supported by TC Young.

How would you

Pension sharing when divorcing in Scotland

Pension sharing when divorcing in Scotland

Research by Glasgow and Edinburgh universities has suggested that many women separating from their husband are deciding against making a claim on their partner's pension. This may be because pension holders tend to be extremely reluctant to relinquish a substantial part of their retirement fund or simply due to the fact that it can be a complex area of law. But what rights do you have to pension sharing and how do you go about enforcing those rights?

Since 1 December 2000 separating spouses, and

Making a Will for a vulnerable adult

Making a Will for a vulnerable adult

In a major appeal decision Sheriff Principal Kerr, North Strathclyde, has confirmed that Wills may be made for vulnerable adults with incapacity using powers under Part 6 of the Adults with Incapacity (Scotland) Act 2000. Unlike the procedure for making "statutory Wills" in England, there is no explicit procedure for doing the same in Scotland. Are you thinking about making a Will for a vulnerable adult?

Following the passing of the 2000 Act, with a limited number of express exceptions, an intervention order could be

Antisocial Behaviour Orders can help RSLs

In Scotland, if a Registered Social Landlord (RSL) have problematic tenants who regularly behave in an antisocial manner, they can make an application to court for Antisocial Behaviour Orders (ASBO) to be granted against tenants for the protection of neighbouring residents.

An ASBO is an order granted by the court and will contain specific conditions to stop a person from behaving in a particular manner or from carrying out specific actions. For example an ASBO may prohibit a person playing loud music at certain times

How can social landlords allocate housing from 2014

The recently published Housing (Scotland) Bill is proposing significant changes to how social landlords?can?allocate housing?.

Changes to the allocation rules are proposed to the following:

Reasonable preference

The Bill proposes a shorter applicant category list who must be given reasonable preference. Beyond these categories RSLs will have greater freedom to create groups they wish to house. Proposed categories are:

  • homeless persons who have ?unmet housing needs?
  • persons living in ?unsatisfactory housing conditions? who also have ?unmet housing needs?
  • tenants who are under occupying

Rules on

Consumer credit regulation for housing associations

In April 2014 regulation of consumer credit will be transferred from the Office of Fair Trading (OFT) to the Financial Conduct Authority (FCA) to create a ?tougher and more pro-active? regulatory regime. The FCA will be granted greater powers to investigate and scrutinise, and will have a wider range of sanctions and penalties to impose. It is important for Registered Social Landlords (RSLs) to be aware of the changes in consumer credit regulation for housing associations?.

What do you need to know?

Many housing associations

What is a Scottish Charitable Trust?

What is a Scottish Charitable Trust?

A Trust is an unincorporated entity set up to hold property to be used solely for charitable purposes. So what is a Scottish charitable trust?

The main characteristics of a Scottish charitable trust are as follows:-

1. It is simple to set up.

2. The Trust Deed (which is the governing document of the Trust) will identify the individuals who are the trustees responsible for the control and management of the Trust and its assets. The powers and duties of the Trust are set out

The Scottish Housing Bill - what will this mean for RSLs?

On 21 November 2013, a new Scottish Housing Bill was introduced in the Scottish Parliament - what will this mean for RSLs?

It is a lengthy document extending to 86 sections. It is expected that this Bill will become law at some point in 2014.

If passed, the Bill will create significant changes in four main areas of housing law and practice.

1??? Right to Buy

  • Proposals to abolish the right to buy entirely. Abolition will take place three years after the Bill is passed.

How to avoid employment law issues at Christmas parties

How to avoid employment law issues at Christmas parties

With the countdown to Christmas already started, it might be an idea to look at how to avoid the potential employment law issues at Christmas parties. Without wanting to be viewed as the 'Scrooge' of the party season, we think that it is helpful to set out some useful tips before entering into the party season and heading for that next glass of mulled wine.

Employees should continue to be aware that when on a work Christmas lunch or dinner, they are still employed by

The Scottish Housing Bill and Letting Agent Regulation

The Scottish Government has issued the draft Housing Bill. The Bill covers a wide range of issues but one of the most significant is the plan for letting agent regulation in Scotland.

The Bill proposes a register of letting agents. Agents will be required to apply to be entered into the register and will only be admitted if deemed to be fit and proper to carry out letting agency work.


When looking into whether an applicant is fit and proper, the Scottish Ministers can

Divorce, Financial Settlements & Bankruptcy

The economic downturn has had a dramatic impact on financial settlements on divorce and has even affected those once considered financially stable.

The law in Scotland relating to financial settlements on divorce can be found in the Family Law (Scotland) Act 1985. But when looking at the effect of bankruptcy (or sequestration) on separating spouses, it is necessary to also consider the terms of the Bankruptcy (Scotland) Act 1985.

When advising clients of the effect of their spouse's bankruptcy following separation, it is important to

Using Management Control Orders

In what is thought to be the first of its kind in Scotland, the City of Edinburgh Council has seized control of two ?party flats? from a private landlord after applying for Management Control Orders (MCO). What are the implications for landlords? ?This Order was brought in under the Antisocial Behaviour Etc (Scotland) Act 2004, which created a number of powers for police, local authorities and Registered Social Landlords to deal with antisocial behaviour. The City of Edinburgh Council may be the first to use

Introduction of another Scottish Housing Bill

After much debate and a lot of discussion it would appear that we are now very close to the introduction of another Housing Bill in the Scottish Parliament.

This Bill is expected to propose a number of changes to the rules which govern tenancies in the public sector in Scotland. We expect the proposals in the Bill to cover almost every area of housing management law.


We anticipate the following proposals

  • Changes to the rules on ?reasonable preference? and priority in allocation of housing.

Land Registration in Scotland ? Changes to the System

The last time the system of land registration in Scotland was fundamentally changed was in 1979. After 1979 title to land would be based on areas plotted on the Ordnance Survey map in the form of a Land Certificate. The Certificate would be issued by the Land Register following completion of a sale transaction and the title would be guaranteed by the Government.

Gradually as properties have been sold over the years many have moved on to the map based system. However, much land and

Can students sue parents for financial support in Scotland?

As university fees increase and part-time jobs become increasingly scarce, students are relying on their parents more than ever to fund their academic studies. But what legal options are available to students who feel they are not receiving the necessary financial support from a parent? Can students sue parents for financial support in Scotland?

Parents have a legal obligation to support a child financially until they are 25 if the child is 'undertaking instruction at an education establishment, or training for employment or for a

Employers obligations to employees in winter

Baby it?s cold outside! Extreme weather conditions such as those experienced a few years ago, can wreak havoc across the country meaning some workplaces come to a standstill and this can have an adverse effect on both employers and employees.? As we creep into winter here are some things to think about.

It is important as an employer that, during any period of adverse weather, you are in control and have an understanding of what you need for your business to continue as normal. It

Abolition of all guardianship and mental health laws?

Should guardianship and mental health laws be abolished? This is the proposal of a committee set up under the UN Convention on the Rights of Persons with Disabilities. ?The same has also been proposed by the European Union?s Fundamental Rights Agency.

I believe these proposals are gravely discriminatory against some of the most vulnerable people in society as some people are unable, with any amount of help, to act and decide validly for themselves.

Without guardianship or similar protections, many vulnerable people can be seriously

Immigration Checks by landlords

There has been much speculation in the media regarding the proposed Immigration Bill, which will include duties to carry out immigration checks by landlords on prospective tenants. Although there were reports that these provisions would be scrapped, Home Secretary Theresa May confirmed her plans to press ahead with these. This is anticipated to become law by 2014 (subject to approval by MPs).

Will carrying out immigration checks by?landlords be necessary?

The Aims of Bill

In a bid to tackle the social and economic problems caused

The Procurement Reform (Scotland) Bill is Introduced

The Procurement Reform Scotland Bill was introduced in the Scottish Parliament on 3 October 2013. Once it becomes law, the Act will exist alongside the current procurement regulations, but will make some fundamental changes in the way public contracts are procured in Scotland.

Some of the main changes are:

  • Increased regulation - supplies/services contracts with a value of ?50,000 or more and works contracts with a value of ?2,000,000 or more which are currently not covered by the procurement regulations are subject to the Bill;

Help to Buy Scotland creating housing bubble?

Will introducing 'Help to Buy' in Scotland take us down the route of another housing bubble?

The controversy surrounding the Help to Buy Scheme south of the border has not prevented a similar government-backed scheme being introduced in Scotland. The Scottish Government announced investment of ?220m over three years to provide financial assistance to eligible homebuyers in what it has described as a ?game changing initiative? for the housing industry.

The Help to Buy scheme, which has the support of the Council of Mortgage

TUPE Regulations - what are the changes?

Are you up to date with the changes in TUPE regulations? In November 2011,?the Department for Business, Skills and Innovation (BIS) published a call for evidence, seeking views on the effectiveness of the current TUPE regulations. This was on the basis that it was thought that the regulations ?gold-plated? the EU Directive.

Following this call for evidence, the Government announced how the Transfer of Undertakings (Protection of Employment) (TUPE) Regulations 2006 will change.? After deciding not to go ahead with two significant changes it had

Tribunal decisions made on bedroom tax appeals

The ?bedroom tax? remains a topic of intense debate and public interest. ?Recently we saw the first tribunal decisions relating to bedroom tax appeals by tenants and we have had the astonishing sight of a United Nations ?rapporteur? visiting Britain and suggesting that the bedroom tax may breach human rights.

A large protest also took place outside the Liberal Democrat party?s Scottish Conference and Baroness Shirley Williams admitted to the conference that this policy was a ?mistake?.

The tribunal decisions were issued in Kirkcaldy where

Grandparents rights to see grandchildren

What are grandparents rights to see their grandchildren following the breakdown of a relationship?? While most parents have parental rights and responsibilities which allows them to seek a court order for contact with their children, what options are available to other family members who feel excluded from a child?s life?

Applying for parental rights and responsibilities

Almost anyone can apply for parental rights and responsibilities provided they have ?an interest? in the child?s life. In practice they will have to show it will be in

Procurement Regulations and Time-Barred Challenges

What do you know about procurement regulations and time barred challenges? The case of Nationwide Gritting Services Limited (NGS) against the Scottish Ministers sheds some light on the challenge timescales under procurement regulations, but unfortunately does little to provide comfort to contracting authorities embarking on procurement exercises.

The 2006 regulations outlined that court proceedings for a breach of those regulations must be brought within 3 months ?from the date when grounds for bringing proceedings first arose?. ??Under the new 2012 regulations, this is now 30

Tenancy Deposit Scheme ? court decisions

Two tenancy deposit scheme decisions issued by Edinburgh Sheriff Court have given some insight on how the courts are going to treat the sanctions available under the tenancy deposit scheme regulations in Scotland.

In Fraser and Pease v Meehan, the landlord had failed to lodge the deposit with the scheme and provide the prescribed information. He claimed he wasn?t aware of the scheme and the duties that came with it, as he lived in Australia.

The Sheriff,

  • reiterated the importance of the regulations in ensuring

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