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EMPLOYMENTlaw EMPLOYMENTlaw
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To p t e n
The Cost: Employees who are dismissed
unfairly can claim compensation of up to
around £70,000. Compensation for sex
discrimination is unlimited, and includes
an award for injur y to feelings from £500
to £25,000.
e m p l o y m e n t m y t h s
The Myth: You can sack someone
on the spot for gross misconduct
The Reality: Employers planning to
dismiss an employee for misconduct
should always follow a fair procedure, even
Can Sir Alan really do that to his Apprentice? if serious misconduct like theft or fighting normal price £59.40,
is suspected. This broadly involves
Mistaking a myth for reality could cost you investigating the situation fully, giving the
employee a chance to respond to any
thousands of pounds. Anna West and Adam Rice allegations and allowing them to appeal the
dismissal. In addition, if any aspect of the
guide you through the employment law minefield dismissal process began before 6 April
2009, the employer must follow a set
statutor y minimum procedure, which
ere we highlight ten common permission, writing to the employee’s GP
H
• protection from discrimination or
employment myths and look harassment on grounds of sex, race, (and any specialist) to find out about the
the reality behind each myth disability, religion, sexual orientation employee’s condition, the prognosis and You’re fired.’
broadly requires the employer to set out
the alleged misconduct in writing , invite
the employee to a meeting to discuss it and
and the potential cost of getting or age. whether there is anything that the give the employee a chance to appeal.
it wrong . employer can do to help facilitate their Failure to follow the statutor y dismissal
The Cost: An employee who is dismissed return (eg reduced hours). In addition, the However, employers can defend claims if The Myth: Those with children have procedure (where it applies) makes the subscribe now and
The Myth: Asking about family without notice can claim pay and benefits employer may want to invite the employee they did all they reasonably could to the right to work part-time dismissal automatically unfair.
plans at a job interview is illegal for the notice period. If the dismissal was to be examined by an independent prevent employees from harassing their The Reality: Employees with young The Cost: Employees with at least a year’s
The Reality: It is not illegal to ask about a unfair, the employee can claim further specialist. Employers should not make any colleagues , for example by having an children do not have an automatic right to service who are dismissed without a fair
candidate’s family, or plans for one, at a job compensation of up to around £70,000. decision about dismissal until they have effective equal opportunities policy that is work part-time, but they have a right to ask procedure being followed could claim
inter view. However, recruiters should tread Damages for discrimination or harassment explored the situation fully. consistently enforced and in which all to work f lexibly (after six months’ ser vice), unfair dismissal and seek compensation of
carefully. If an employer refuses to employ are uncapped and include an award of The Cost: An employee who is on employees are trained. eg working part-time. Employers do not up to around £70,000.
someone because of their family duties, £500 to £25,000 for injur y to feelings. longterm sickness absence may be The Cost: Employees who suffer have to agree to such requests , but must
this would be sex discrimination, and the protected under employment laws as a harassment at work can claim unlimited consider them carefully by following a set The Myth: You can dismiss an
candidate could use the inter view The Myth: Employees have no right disabled person (whether the illness is compensation, including an award for procedure and only refusing them on employee who is 65 without claims
questions as evidence to support their case. to notice during their probationary physical or mental, eg depression). injur y to feelings from £500 to £25,000. specified grounds (eg additional costs or The Reality: Employers are allowed to
Instead, questions should objectively relate period. A disabled employee who is unjustifiably impact on performance). In addition, retire an employee at or above 65 (or the
to the job requirements and should be The Reality: After one month’s dismissed, or other wise unfavourably The Myth: Employees have no right refusing a f lexible working request from a employer’s normal retirement age if this is
asked of all candidates , for example, if they employment, all employees are entitled to treated, can claim unlimited compensation, to privacy in the workplace female employee may amount to sex later). But to avoid claims, employers must
would be okay with travelling away from at least one week’s notice (even if the including a component for injur y to The Reality: Employees do have a right discrimination, on the basis that women follow a statutor y retirement procedure.
home or performing regular overtime. contract provides for less). This minimum feelings of £500 to £25,000. The employee to privacy in the workplace. This means are more likely to be primar y carers . This means they should notif y the pay only £44.55 for
The Cost: A sex discrimination claim notice period increases by one week for may also have an unfair dismissal claim there is a limit to how far employers can go The Cost: Failing to follow the set employee in writing six to 12 months in
could be quite costly with compensation each full year of ser vice, to a maximum of (with compensation of up to around to keep tabs on their staff. While some procedure could cost the employer up to advance of their retirement and tell them
being uncapped and including a 12 weeks . However, if the contract £70,000). level of monitoring is reasonable, eg to £2800 in compensation, but a sex that they can ask to work for longer. If the
component for injur y to feelings of provides for more than the minimum ensure the quality of work , employers must discrimination claim, for unjustifiably employee does ask to work beyond the
between £500 and £25,000. Aside from the notice then the longer contractual period The Myth: Employees can only strike a balance between the needs of the refusing a flexible working request, could retirement date, the employee has to
financial costs , any claim involving sex will apply. claim harassment if offensive jokes business and employees’ rights to protect cost a lot more; compensation is unlimited. consider the request seriously and meet
discrimination is potentially damaging to The Cost: Employees who are dismissed are directed specifically at them. their private lives . In general, any with the employee to discuss it.
an employer’s reputation. without notice can claim pay and benefits The Reality: An employee who is interference with privacy must be no more The Myth: You can’t be dismissed The Cost: If the employer does not go
for the notice period (except in cases of offended by jokes or office banter about than is reasonably necessar y and the if pregnant or on maternity leave. through all these steps , the employee will
The Myth: Employees have no gross misconduct). sex, race, sexuality, religion, or age, can employer should have good reasons for The Reality: You can, but if the reason have an age discrimination claim where the
rights without a written claim harassment, even if the jokes or doing so. Employers should also make sure for the dismissal is related to their compensation could be unlimited and an
employment contract. The Myth: Employees on long-term banter were not directed at them. It is employees are aware of any workplace pregnancy or maternity leave this amounts unfair dismissal claim with compensation
The Reality: Even without a written sick leave should be left well alone. irrelevant whether or not the perpetrator monitoring . to sex discrimination and unfair dismissal. of up to around £70,000.
contract, employees have certain legal The Reality: Although employers should meant to cause offence – it is the The Cost: Employers who engage in Sometimes an employee is dismissed for a twelve issues.
rights including: not put undue pressure on employees who employee’s individual perspective that unlawful monitoring could face claims of fair and non-discriminator y reason, but a Anna West and Adam Rice are specialists in
• minimum notice (after one month’s are on long-term sick leave, they are matters. Employers are liable for unfair dismissal (with compensation of up lack of evidence to back this up leads an employment law at solicitors, Travers Smith.
employment – see below); entitled to find out more information harassment by their employees at work to around £70,000), plus unlimited Employment Tribunal to believe that the
• the right to claim unfair dismissal about the illness. This would include and at work-related events off site (eg an damages (and potential fines) under data pregnancy/maternity leave was the real
Any experience of this or advice to share?
(after one year’s employment); consultation with the employee and, with office party or team building event). protection laws. reason for dismissal. www.propertydrum.com/articles/myths
20 J U L Y - A U G U S T 2 0 0 9 PROPERTYd r u m PROPERTYd r u m J U L Y - A U G U S T 2 0 0 9 21
09JulyPD 20-21 Employment.indd 1 25/6/09 10:44:38 09JulyPD 20-21 Employment.indd 2 25/6/09 10:46:26
AUCTIONS AUCTIONS
pay by:
his month we look at how result in a significant level of expenditure.
Who’s up for auction?
T
estate agents can get involved The certainty A ver y successful ‘half-way ’ house would
in the auction business . The be to become a joint auctioneer.
popularity and press coverage of a sale on the If you can see that you have a stream of
of property auctions has never suitable properties coming to auction then
been higher than it is now. fall of the gavel is many estate agents have successfully joined
How does an estate agent benefit from the success of the More and more agents and individuals are forces with either a national London
looking to see if they can share and enjoy also a motivating auctioneer or a local auctioneer, agreeing
auction room? David Sandeman has some sound advice this side of the property market. to be a joint auctioneer. In general terms
This increase in exposure is partly due to factor for a vendor the auction house provides the back up,
the rise in repossessions over the last two auction facilities, marketing , catalogue
years and the increase in the number when choosing the production, auction expertise and a
which are finding their way through to the mailing list. The estate agent as joint
auction room. With the maturing internet auction route.’ auctioneer provides the property and will
it is now much easier for auction houses to be involved in the viewings . The
reach a potential buying market. Indeed, in In order to make the property attractive commission on the sale would then be split
a recent Ombudsman case an estate agent in the catalogue the guide and reser ve need at a rate agreed between the two parties
was fined for not considering the use of to be set in the order of 20-30 per cent often at 50/50 once the property is sold.
auctions when advising a client on the below the last asking price. What will The benefits to an estate agent joining an
disposal of a property. generally struggle to sell at a property established auctioneer are: •

credit card
There are numerous benefits of being auction is a typical modernised house
involved in auctioneering . Firstly fees will being offered by a vendor who lives there • a minimal exposure to costs
be generated on the sale. Secondly, and has failed to sell it through an estate • guarantee that the property will
auctions have always attracted a great deal agent and wants to set a reserve equal to or have wide marketing with the
of media interest and for a regional auction ver y close to the last asking price. The existing mailing list
you will be able to generate much in the property has to appear to be attractive to • a very short time from fi nding a
way of press interest for what might be a the trade buyers . suitable property to holding an
single branch agency. In addition, the buyer Having identified a suitable source of auction for that particular lot
and vendor may well be in the property stock does one set up a new auction
business , which would lead to repeat department or become a joint auctioneer? There would obviously be no need to set
business and sales , rather than a one-off To set up an auction department will up a whole new business as one could be a
purchase or sale by a private individual. involve a great deal of work but the reward joint auctioneer with just one lot in the
can be satisf ying . Firstly you need to make catalogue. In addition by handling the
FIRST STEPS TO WIELDING THE GAVEL sure that you will have a supply of suitable viewings you will get to meet many local
There are two key ways one can get stock to offer and that you have a route to developers who may not be known to you,
involved in auctioneering . Firstly you can market and a mailing list to whom you can but given the nature of their business they •

debit card
set up a new auction department with send your catalogue. It would not be may well instruct you, if they are the
everything that entails, or become a joint enough just to take out a series of adverts successful purchaser of the property to
auctioneer and team up with an existing in the local paper and hope that local either let it or sell it on, once it has been
auction house. developers will find you, either that way or developed. In all cases your profile will be
Before looking at the two different ways , through the internet. raised in the local market place.
it’s prudent at this stage to consider what
No-one’s expecting you makes a good ‘lot’ and what does not THE RIGHT AUCTIONEER TAKE THE LEAP
to get up and start taking generally sell at auction. My obser vation, In addition once you have the stock and In conclusion, property auctions are seeing
bids, but working with an after watching auctions over the last 25 the buyers you will need expertise in a continued growth both in the number of
established auctioneer can years , is that the vast majority of vendors running the auction, there are many rules lots and in public interest and awareness of
be a lucrative joint venture will never have lived in the property, it is and regulations unique to the auction them. Estate agents can capitalise on these
not their principal residence and they are industr y. You will need to understand the two facts by being involved in the industr y.
not emotionally attached to the property. auction process and also have the ser vices Both solutions have their merits though
Often it will be unmodernised, the vendor of an auctioneer who understands joining with an established auctioneer does
will be a bank, property company, executor property. Some new auction houses in the limit the risk and speed up the time to
or a local/municipal authority. The past have found it ver y difficult when market. Some estate agents have started off
timescale to achieve a sale will often be as attempting to use an experienced chattels as joint auctioneers and now have set up •

paypal
important as the ultimate price achieved. auctioneer to sell property. The pace is ver y their own auction departments having
Having said that, it should be noted some different between the two disciplines and gained some experience as a result.
auction lots sell at prices in excess of the not many make a successful transition.
last asking price in the estate agent’s With all that in place the marketing and Contact David Sandeman if you’d like to
window. The swift timetable and certainty advertising will have to be arranged to discuss it with him: davids@eigroup.co.uk
of sale on the fall of the gavel is also a attract a large crowd in to the room to get a
motivating factor for a vendor when bidding atmosphere under way. All of this Have you ventured into auctions? Tell us:
choosing the auction route. can take up a great deal of time and also www.propertydrum.com/articles/auctionjv
PROPERTYd r u m J U L Y - A U G U S T 2 0 0 9 67
09JulyPD 66-67 Get into auctionsGL.indd 1 25/6/09 12:39:50 09JulyPD 66-67 Get into auctionsGL.indd 2 25/6/09 12:40:19
•

cheque
RESIDENTIALs a l e s REsidEnTials a l e s
Rober t
Scott-Lee,
HHI IPPss – – t thhoorrnn i inn tthhee ssi iddee??
md ,
cHancelloRs
“The introduction
of first day
This April, the temporary measures introduced to ease the marketing has
frustrated sellers ,
establishment of HIPs were removed. Danielle Simpson who want to
progress to the market, and also frustrated
talks to some of country’s leading property professionals to buyers who want to know about the new
properties we have but cannot tell them
find out how the new requirements are affecting the industry. about! A useful HIP is difficult to foresee.
With management enquiries and searches
in disarray there will never be a ‘smooth’ or
ince their introduction, HIPs would streamline matters in a green way. I uniform HIP. Under current rules this just
S
have been a thorn in the side of suspect a minority of agents are f launting leads to uncertainty with properties being
the property business , but estate the law on HIPs but as there is little delayed when coming to the market and
agents are learning to live with policing it’s hard to know. The Agent is the even withdrawn mid marketing . The log on
them. On 6 April this year, three responsible person, so the risks to the seller Government should split the EPC from the
significant changes were are minimal, other than the fact they may HIP and make that part mandator y but
introduced which brought them right to have to find another agent if the ‘law scrap the rest.
the top of the agenda for agents: breaker’ agent is barred from practising or “ We are committed to following the
cannot pay the fines if caught. requirements of HIPs regulations to the
• the suspension of fi rst day marketing So are HIPS useful? Few buyers appear letter but remain in the situation where
– a HIP must be available to buyers as interested in the documentation and a HIP neither buyer nor seller values the HIP as
soon as a property is marketed; would only be better read if it provided a part of the marketing information package.
• the inclusion of a Property sur vey, though this brings understandable While HIPS can put honest agents at a
Information Questionnaire – to be resistance from sellers and agents . competitive disadvantage we believe we
completed by the seller and made The Local Authority search systems will demonstrate, to both customers and
available before the property is require investment and that might be clients , why a quality agent is needed in the
marketed; and Peter Rollings, harder to find in these recessionar y times . regulated market we work within.
• the completion of local authority MANAGING DIRECTOR “A scar y proportion of agents are
searches, bringing an end to the use of MARSH AND PARSONS f launting the law on HIPs which can result
incomplete personal searches. “As EPCs are the only thing required under Few buyers in fines but more importantly forced and reserve
EEC law, I would expect the next withdrawal from market and so missing
It’s not surprising , given the time and government to scrap HIPs but keep the appear
financial implications of these changes , EPC. I don’t believe they add any value to In the economic
the key buyer. We have worked hard to
ensure we adhere to ever y element of the
that many industr y experts are still calling the process that can’t be added by interested in the
Mar c
Goldberg,
for the home grown elements of HIPs to be employing a good ‘on-the-ball’ solicitor downturn,
regulations but without the government
enforcing HIP regulations , and taking
scrapped. But others , it seems , are from day one.” documentation Head of Residential sales, Hamptons
warming to the idea – so long as value is inteRnational it is vital that
action against those that breach the rules ,
we are left at a competitive disadvantage
added, EPCs are addressed and the and a HIP would
Government concedes to finally take Miles consumers receive
on the high street.
“Thankfully quality clients do always
advice from the industr y. Shipside only be better read
“In the economic
downturn, it is
Of course the majority of agents are only the best possible
want a compliant agent so once explained
RIGHTMOVE we find most potential clients see the
too aware that the new regulations are if it provided a
vital that
consumers
being f launted, putting compliant agents at “The introduction service when
benefit of steering clear of agents who are
avoiding the regulations.
a disadvantage, but as the Government so of first day survey, though
receive the best possible ser vice when
buying or selling a home. The biggest “Currently the disorganisation of Local
badly ‘crashed’ the HIPs train when it came marketing has is buying or selling Authority Searches is putting up the cost of your personal
on board, HIPs-positive agents are seizing c r e a t e d this brings
change from the 6 April HIP revision
that agents will now have to delay moving for both the seller and buyer –
the opportunity to take matters firmly in paper work and marketing properties until they have a home.’ something clearly against the government’s
hand by adding their own value to the HIPs some delays to understandable received the completed HIP, including PIQ. objectives . One would hope Local
process and ensuring consumers are better marketing where agents or HIP suppliers Whilst this initial delay in marketing may maRc goldbeRg, Hamptons inteRnational Authorities are planning to take action as
informed about the benefits of HIPs . systems have been found wanting . resistance from cause some frustration to begin with, we speak. It is also important to remember
Many, but not all, recognise that there However as HIPs were required before hopefully the extra upfront preparation help to drive increased monitoring of that once a sale is agreed any purchaser’s
isn’t much point in fighting any more, not April 6th some [agents] are not noticing a sellers and agents.’ required will speed up the transaction compliance across the industr y ”. solicitor will use the absence of a HIP as a
until a new government is in power, at major change. process . In addition, whilst some agents Hamptons is running a PR campaign to clear negotiation tool with both time-
least, and that the best way to handle HIPs If the government split the EPC from the MILES SHIPSIDE, RIGHTMOVE have previously disregarded HIP heighten public awareness of HIPs . frame and cost implications to the seller.
is to comply and use them as a sales aid. HIP and made that part mandator y it requirements , these changes should also
44 J U L Y - A U G U S T 2 0 0 9 PROPERTYd r u m PROPERTYd r u m J U L Y - A U G U S T 2 0 0 9 45
MagaZIne
09JulyPD 44-47 HIPS.GL.indd 1 25/6/09 11:32:24 09JulyPD 44-47 HIPS.GL.indd 2 25/6/09 11:33:00
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PROPERTYdrum April 2009 8
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