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One of the most common forms of tenancy agreement is the assured shorthold tenancy (AST) agreement. In order to qualify as an AST, there are a number of statutory requirements to be met.

An AST provides certainty in rent and possession for tenants, but also provides landlords a right to repossess the premises without cause after an initial six-month period. Tenants are entitled to enforce rights against disturbance of possession and for repair of the premises against the landlord.

Term duration

The agreement can be for any fixed duration. An AST will offer protection from eviction for the first six months following commencement of the agreement, even if the agreed term is less than six months. Typically, ASTs are provided for a six-month to a one-year period. However, if the tenant breaches any terms of the agreement, the landlord may seek eviction at any point.

Requirements for an assured shorthold tenancy

As well as being for a fixed period of time, the tenant and landlord will agree on a fixed amount of rent payable. Under the Housing Act 1988, to qualify as an AST, the premises must:

  • be let out as separate accommodation i.e. the landlord cannot reside in the same premises;
  • serve as the tenant’s principal residence;
  • be let out for less than £100,000 in rent per annum or equivalent pro rata; and
  • incorporate more than two acres of agricultural land.

Further the tenant in an AST must be a natural person, and cannot be a legal entity such as an LLP.

If agreed before 28 February 1997, the tenant must have been provided notice that they are signing an AST.

Typically, conditions that are added to ASTs relate to leaving the premises unattended, paying local council taxes and keeping of pets.

Rent

In terms of fixed rent, the landlord is usually required to ask the tenant to pay full market rent, which is measured relative to other similar properties in the same geographic area. A fixed rate can only be amended in the course of the tenancy with the agreement of both parties.

If a tenant considers their rent to be excessive, they can refer the landlord to the Rent Assessment Committee within the first six months of their tenancy. The Committee is independent from local authorities and has a statutorily prescribed membership of a lawyer, property expert and a lay member. The Committee will determine what constitutes reasonable market rent for the premises, and will usually look to other ASTs in that area. Application to the Committee is free for tenants.

Deposits

At the outset of the tenancy, the landlord is obliged to place any deposit received into a government approved scheme. Failure to do so may result in the landlord being unable to enforce their rights, including the right to repossession after six months.

Rights of the tenant

A tenant who has agreed an AST enjoys a range of rights, including:

  • The right to live in the premises undisturbed, which includes sole control and use of the premises and free access. A landlord who interferes with this right can leave himself or herself open to a harassment claim.
  • The right to have the premises maintained in good repair, which requires the landlord to keep the exterior of the premises in working condition. It also requires that they maintain utilities, including gas, electricity, water, sanitation and heating, and for such utilities to comply with official certification.
  • The right to information regarding the tenancy, which obliges landlords to provide a statement detailing the agreed start and end date, and the amount of rent and when it should be paid.

Accelerated Possession Proceedings

Under the Housing Act 1988, a landlord has a right to repossession of the premises after expiry of the initial six-month period, even if an actual fixed term has no yet expired. No reason is required for the landlord to exercise their right to repossess.

This right is evoked through use of Accelerated Possession Proceedings, which enable a landlord to bypass the need for a court hearing and instead apply to the court for an order for possession. At least two months’ notice must be provided to the tenant before the actual date of possession.

If the AST expires and no new fixed term is agreed, the tenancy will become a periodic tenancy. This will typically arise if the tenant simply pays month-to-month on a set date. If the landlord wished to initiate Accelerated Possession Proceedings, they must still provide two months’ notice through service of a Section 21 Notice, running from the date rent is routinely paid.

Eviction for valid reason

A landlord can bring an AST to an end prior to expiry of its term if a valid reason exists. This will enable a landlord to bypass the six-month protective period where Accelerated Possession Proceedings are concerned. Reasons can include non-payment of rent, late payment of rent, violation of the terms of the tenancy and nuisance or annoyance caused by the tenant. In order to initiate eviction proceedings against a tenant, the landlord will have to serve a Section 8 Notice, notifying the tenant of the grounds for seeking repossession.

The tenant can challenge the repossession in court on the basis that the grounds the landlord has relied on are unreasonable.

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It is important a landlord and new tenant are fully aware of the agreement they are entering into form the outset, as well as the rights and obligations they owe to one another. This can avoid costly and time-consuming court proceedings at a later date.

The Property Lawyers at Lewis Nedas Law have specialist knowledge in both commercial and residential property disputes. With offices in Camden and Fleet Street, we provide advice to clients across Central, West and North London, as well as the wider UK.

To speak to our Property Law Specialists, please call us on 02073872032 or complete our online enquiry form.

 

In the event a landlord wishes to recover possession of their property from an assured shorthold tenancy immediately, they may have recourse to Accelerated Possession Proceedings. These proceedings are not attributed to fault on part of the tenant, and do not require a court hearing before being granted. As such, there are a number of procedural hurdles that the landlord must overcome.

Procedure

Accelerated Possession Proceedings are started by application to the relevant county court and payment of the mandatory fee. The application must be accompanied by a witness statement and the tenancy agreement. There must also be evidence that the landlord has served a Section 21 Notice on the tenant and has placed the tenant’s deposit in a licensed tenancy deposit scheme.

As of 2015, the landlord must also provide evidence that the tenant was served with:

  • a current Energy Performance Certificate (EPC);
  • a copy of a current Gas Safety Certificate; and
  • a copy of the current version of the “How to Rent Guide” issued by the UK Government.

On approval, service will be made upon the tenant by the court. With service, a tenant will be notified of their right to object to the proceedings within 14 days.

No reasons have to be provided by the landlord for the eviction other than the agreed fixed term has come to an end.

Grounds for objection

A tenant can only object to Accelerated Possession Proceedings on the following grounds:

  • the Section 21 Notice is defective on its face, or lacks one of the requisite accompanying documents; or
  • they did not receive service.

Once the 14-day period has expired, the court will consider whether a court hearing may be warranted. Otherwise, the court will issue an order for possession. If the court does consider a hearing is necessary, a successful challenge by the tenant may result in a suspension of any possession order, or dismissal of the case altogether. If the case is dismissed, the landlord will have to start the proceedings again, subject to the two months’ notice period.

A Section 21 Notice cannot be served if prior to service the landlord had failed to respond to a complaint about the condition of the property and the relevant local authority had served a Section 11, 12 or 40(7) Notice on the landlord. 

Fixed term contracts and Accelerated Possession Proceedings

As a general rule, a landlord cannot seek eviction prior to the agreed end date of a fixed term tenancy agreement, and in any event must give at least two months’ notice before the anticipated date for recovering possession. It is possible to serve notice at the same time the tenant initially signs the tenancy agreement. In order to qualify for an Accelerated Possession Proceeding, the landlord must have granted an assured shorthold tenancy.

Assured shorthold tenancies

Under the Housing Acts 1996, a landlord has a mandatory right of repossession when an assured shorthold tenancy comes to the end of its fixed period. If the term is for less than six months, the right of repossession cannot be exercised until a six-month period has passed. For an assured shorthold tenancy to be recognised for the purpose of proceedings, there must be a written agreement in existence that commenced no earlier than 15 January 1989. If the tenancy commenced prior to 28 February 1997, there must be evidence the tenant was informed they were entering into an assured shorthold tenancy.

The first six months of an assured shorthold tenancy are protected from any Accelerated Possession Proceedings. The landlord must serve a Section 21 Notice upon the tenant, at a minimum of two months prior to the anticipated date for recovering possession, which cannot occur within the initial six-month period.

Time limits

If the court concludes a hearing is not warranted, the possession order issued will provide a tenant between 14 and 28 days to surrender the premises. The judge has discretion to increase this period to a maximum of 42 days if an earlier date would subject the tenant to unnecessary hardship.

Enforcement

If the tenant has not vacated the premises by the date provided on the possession order, the landlord will seek a warrant for eviction and a court bailiff will physically evict the tenant. The process for applying for a bailiff will typically take between two to three weeks.

There is an expedited enforcement procedure offered via the High Court, where a data for eviction can be obtained within a few days.

Rent arrears

Accelerated Possession Proceedings do not facilitate recovery of rent arrears. A landlord will have to seek alternative court action in order to recover sums owed, including small claims or fault-based possession proceedings. A court has no power to order rent to be paid during the notice period in an Accelerated Possession Proceeding.

Retaliatory evictions

If the tenancy began on or after 1 October 2015, Accelerated Possession Proceedings cannot be used in retaliation to a tenant who has lodged a complaint about the condition of the property. This is known as the “retaliatory eviction” rule. The rule will not apply if the property has been placed on the market for sale or if the tenant has violated a condition of their tenancy agreement.

Contact our Property Solicitors London Today

Accelerated Possession Proceedings are a means of a landlord avoiding lengthy and costly possession proceedings in court. It is paramount that the requirements of a Section 21 Notice are met, as failure to do so may result in dismissal of the application and the landlord having to revert back to square one.

The Property Lawyers at Lewis Nedas Law have specialist knowledge in both commercial and residential property disputes. With offices in Camden and Fleet Street, we provide advice to clients across Central, West and North London, as well as the wider UK.

To speak to our Property Law Specialists, please call us on 02073872032 or complete our online enquiry form.

Where a business runs into financial instability, one of the most difficult decisions to be made is making employees redundant. There are a number of protections in place for employees in relation to redundancies, including a fair and impartial selection process and being offered alternative positions in the business.

Where larger scale redundancies are anticipated, there are statutory obligations on the employer to enter into collective consultation with their employees, endeavour to find alternatives and consult for a prescribed minimum period.

Alternative employment

If an employer has another position available to an employee, as an alternative to making them redundant, the employer must offer that position to them. A “suitable alternative employment” must take into account the experience, skill level, geographic location and have a relative rate of pay to the employee’s current position. Failure to offer a suitable alternative where it is otherwise feasible may entitle an employee to bring an unfair dismissal claim.

If an employer does offer a suitable alternative employment and the employee refuses the offer, they may lose their right to claim Statutory Redundancy Pay (SRP).

When an employee accepts suitable alternative employment, a statutory trial period of four week runs from commencement of the position. During this time, the employer can determine whether redundancy is still warranted and consider a further alternative position. As with the original redundancy, if the employee refuses a further alternative, or provides unreasonable grounds for leaving the role during the statutory trial period, they may waive their right to SRP.

Notification periods

The notice period an employee is entitled to will depend on the length of tenure they have served. Between one month and two years, the redundancy notice period is one week. After two years, the employee’s notice period is equated to one week for each year they have worked, up to a limit of 12 weeks. These notification periods cannot be shortened by contract of employment, but they can be extended.

An employee should receive their ordinary pay within the notification period, in addition to their SRP. If an employer does not wish the employee to work during the notice period, they can request they do not return to work, known as “garden leave”, or provide all notice pay in a lump sum without giving notice, known as pay in lieu of notice.

Appealing a redundancy decision

There is no right to appeal in a redundancy case, but to avoid potentially being considered unfair, the UK’s Advisory, Conciliation and Arbitration Service recommends employers offer a route for appealing redundancy decisions. The appeal should be made to a more senior staff member in management, who has not been involved in making the prior redundancy decision.

Collective consultation

Where an employer seeks to make 20 or more employees redundant, they are subject to a statutory obligation to consult the employees as a group and arrive at a potential compromise.

Procedural Steps

Before commencing a collective consultation, an employer must notify the Redundancy Payments Service (RPS). If the employer anticipates making 20 to 99 redundancies, they will have to notify RPS at least 30 days prior to making them. If the employer anticipates making 100 or more redundancies, they will have to provide notification at least 45 days prior. Failure to notify within these deadlines may result in substantial fines being imposed on the employer.

When consultation begins, the group of employees will be represented by their Trade Union, if they are members of one, or otherwise they will elect on of their group to serve as representatives.

The consultation process must, insofar as possible, discuss means of avoiding the redundancies, the reasoning behind them, whether they can be reduced in number, and what re-training can be offered to employees.

Micro businesses

Businesses with 10 or fewer employees are not subject to the obligation to consult collectively, but there remains an obligation to individually consult with employees being made redundant.

Time limits for consultation periods

Depending on the number of employees the employer intends to make redundant, there are statutory minimum periods for consultation. If the employee group includes between 20 and 99 individuals, the consultation must commence at least 30 days prior to the anticipated redundancies. If the group number is 100 or more, the requisite period is 45 days.

Sale of business assets and transfer of undertakings (protection of employees)

Where an employer decides to sell business assets in order to save it, the Transfer of Undertakings (Protection of Employment) Regulations 2006 provide protections for contracts of employment.

If an employee is dismissed for the sole reason of the transfer, this will be regarded as unfair automatically. If the employer substantially alters the terms and conditions of an employee’s contract against their interest, this can constitute grounds for a constructive unfair dismissal claim. Any collective agreements entered into by the employer with their employees must also transfer to the new business entity without being altered unfavourably.

If the employer anticipates making large-scale redundancies in the course of the transfer, they are subject to a statutory obligation to consult. Where 20 or more employees are concerned, the employer must enter consultation at least 90 days prior to the anticipated date. If the group is made up of less than 20, there is an obligation to consult, but no time limit applies.

Contact our Redundancy Solicitors London Today

Failure to adhere to statutory obligations when considering redundancies may expose a business to costly and time-consuming legal claims, which can negate any attempts to reach financial stability. It can also disrupt a sale of business assets, leading to both financial and reputational harm for an employer.

At Lewis Nedas, our Employment Law Solicitors have over 25 years’ experience advising and representing national and international companies. Our Employment Lawyers have joined the Office Essential Network, which is a specialist organisation aimed at assisting young start-up businesses requiring advice on employment issues, including redundancies and restructuring.

To speak to one of our Employment Specialists, please call us on 02073872032 or complete our online enquiry form.

In order to protect their business interests, employers will often attempt to include clauses in their contacts of employment that restrict who a former employer can do business with, whether they can establish a business, what information they can use and any rights the employer will continue to have in intellectual property.

Restraint of trade clauses

Where a former employer anticipates competition in their market from a former employee, they may include contractual restraints on their business activity that last for a period of time beyond the end of their tenure. Likewise, when a business seeks to acquire a business entity in order to enter a new market, that sale may be subject to a clause restricting the seller’s trade for a period of time. A former employee may also be prevented from soliciting clients and other employee from their former employer.

A court has discretion to determine whether a contractual provision that restricts trade is reasonable and not contrary to the public interest in free trade. In essence, the contractual provision should be proportionate, that is, no more that necessary to protect the employer’s business interests. A court will also consider if there has been a fair exchange in terms of value paid for having the clause included. A court will also take into account the common trade practice in the specific industry, and whether such clauses are commonplace in that industry.

Confidentiality agreements

In order to prevent sensitive business information being aired in public, an employer can subject an employee to a confidentiality agreement. A common example is non-disclosure of trade secrets, where an exiting employee cannot use carefully guarded knowledge from their former employer to compete against them.

If a signatory to a confidentiality agreement is likely to beach it, the other party may seek a permanent injunction, with added damages. If the threat of disclosure is immediate, a court can award a temporary injunction. Where profits are made by a party as a result of utilising trade secrets in breach of an agreement, a court can order recovery of those profits to the aggrieved party.

Intellectual property

The default rule for intellectual property created by an employer in the course of their employment is that the intellectual property belongs to the employer. However, the employee may still be able to claim a “moral” right to be recognised as its creator, and object to replication or adaptation of their product. These are known as paternity rights, and will exist unless waived through contractual agreement.

 

Contact our Employment Law Solicitors London Today

In order to be effective and not subject to negation through court action, it is important to consult an Employment Solicitor when contemplating inclusion of restrictive covenants, confidentiality agreements and clauses relating to intellectual property in contracts.

At Lewis Nedas, our Employment Law Solicitors have over 25 years’ experience advising and representing national and international companies. Our Employment Lawyers have joined the Office Essential Network, which is a specialist organisation aimed at assisting young start-up businesses requiring advice on employment issues, including restrictive trade covenants, confidentiality agreements and intellectual property clauses.

To speak to one of our Employment Specialists, please call us on 0207 387 2032 or complete our online enquiry form.

In order to recruit the best staff for the job, an employer will anticipate a certain skill set and attributes they wish in prospective employees. Beyond the point of hiring, an employer will often wish to establish a probationary period to ensure a new recruit is meeting expectations.

An employer can never unlawfully discriminate in their recruitment processes. Depending on the type of business the employer operates, disclosures as to criminal background can be requested by an employer. Further, there are data protection and retention issues even where a candidate is unsuccessful for a role.

Data protection

Under the Data Protection Act 1998, employers who process individual’s personal data must adhere to the principles prescribed in the Act, which require that the processing of the data is for a lawful purpose and is relevant to that purpose, and that the information is accurate and is held for no longer than necessary.

In the course of the recruitment process, a candidate must be notified of any use the employer will make of the personal information they share, and clearly indicate for how long that information will be retained.

Discrimination

Under the Equality Act 2010, an employer cannot explicitly or implicitly discriminate against anyone on the basis of a protected characteristic. This includes where an employer might indicate they cannot accommodate persons with disabilities.

Criminal convictions

Unless an exception applies, an employer cannot refuse a candidate due to a criminal conviction of up to four years if that conviction is spent. Being “spent” in England & Wales refers to a statutorily prescribed rehabilitation period after completion of a sentence. With custodial sentences this period can be up to seven years.

Many jobs will however require a criminal record check. In the UK there are three levels of record request: (1) a Criminal Conviction Certificate (CCC); (2) a Criminal Record Certificate (CRC); and (3) an Enhanced Criminal Record Certificate (ECRC). A CCC will not disclose spent convictions.

Employment sectors where exemptions apply and criminal records disclosures are required include medical and legal professions, accountancy, education, social services and positions that involve working with children.

Probationary periods

Many employers will purport to have a probationary period at the outset of employment, during which time initial performance is reviewed. A probationary period cannot interfere with a new employee’s statutory rights, including that against unfair dismissal. From the day an employee commences work, the employer must adhere to any disciplinary policy they operate and provide proper notice to a new employee if they wish to dismiss them.

Contact our Employment Law Solicitors London Today

It is important to find the balance between vetting candidates to find those best suited to the job and respecting the statutory rights of candidates and new employers, otherwise an employer can leave themselves vulnerable to legal claims.

At Lewis Nedas, our Employment Law Solicitors have over 25 years’ experience advising and representing national and international companies. Our Employment Lawyers have joined the Office Essential Network, which is a specialist organisation aimed at assisting young start-up businesses requiring advice on employment issues, including recruitment processes.

To speak to one of our Employment Specialists, please call us on 02073872032 or complete our online enquiry form.

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