Latest News

Silver Shemmings welcome new Consultant Solicitor - 01/12/2011

We are pleased to confirm that Diana Hird has joined the practice as a Consultant as from 1 December 2011.

Diana specialises in professional negligence claims for construction professionals, contract vetting and commercial advice.

Diana can be contacted at our London office on 0845 345 1244 or by email at deh@shemmingsllp.co.uk

Employment Law Article by Anthony Philpott published in the Solicitors Journal - 01/11/2011

''Coming of Age'' is an article on age discrimination written by Anthony Philpott, Consultant with Silver Shemmings LLP. This article has recently been published in the Solicitors Journal (SJ 155/40 25 October 2011)

Anthony Philpott looks at the case of Seldon v Clarkson Wright & Jakes and Equality and Human Rights Commission [2010] EWCA Civ 899 which involved an equity Partner in a firm of solicitors who was compulsory retired at the end of the year following his 65th birthday. Seldon alleged enforced retirement constituted direct age discrimination and the issue for the Employment Tribunal was whether the discrimination could be justified as a proportionate means of achieving a legitimate aim.

A copy of this article can be dowloaded from the Publications section of our website via the "More on this article" link below.

If you would like any further information please contact Anthony Philpott on 0845 345 1244 or ap@shemmingsllp.co.uk

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Free Legal Helpine for FMB Members - 14/10/2011

We are now assisting the Federation of Master Builders London region by providing a free legal helpline for its members. Since its start we have had a number of calls for assistance on a range of matters.

This helpline is in addition to our legal helpline details of which are are shown above. If you require any further information please contact Sarah Shemmings at our London office.

Practical Guide to NEC3 Engineering & Construction Contract - 04/05/2011

The NEC3 Engineering & Construction Contract is one of the more popular forms of contract used in the construction industry. However it is also much misunderstood which is why our seminars on the subject have been so popular and is why Michael Rowlinson of Alway Associates,a company that we work closely with, has written a book on the subject.

A Practical Guide to the NEC3 Engineering & Construction Contract has recently been published by Wiley-Blackwell. We do recommend this as essential reading material!

Tickets for Wimbledon - Is it Bribery? - 27/04/2011

The Bribery Act passed last year has not yet come into force because guidance on how the Act was supposed to work could not be agreed. However last week this was published with a view to implementing the Act in July of this year.

So what is bribery?

It is defined by the Act in 2 general offences. The first deals with the "offering, promising or giving of an advantage" and the second with "requesting, agreeing to receive or accepting an advantage" i.e. giving a bribe and receiving a bribe.

In the introduction to the Guidance Note, Ken Clarke the Justice Minister states:-

"I have listened carefully to business representatives to ensure the Act is implemented in a workable way - especially for small firms that have limited resources. And, as I hope this guidance shows, combating the risks of bribery is largely about common sense, not burdensome procedures. The core principle it sets out is proportionality".

Many companies were concerned that by hosting hospitality events, they would fall foul of this Act. The Guidance makes it clear that:

"Bona fide hospitality and promotional, or other business expenditure which seeks to improve the image of a commercial organisation, better to present products and services, or establish cordial relations, is recognised as an established and important part of doing business and it is not the intention of the Act to criminalise such behaviour. The Government does not intend for the Act to prohibit reasonable and proportionate hospitality and promotional or other similar business expenditure intended for these purposes. It is, however, clear that hospitality and promotional or other similar business expenditure can be employed as bribes."

So tickets for the cricket or tennis are still ok provided of course that they are not being used as a bribe.

For more information please contact Sarah Shemmings on 0845 345 1244 or at sas@shemmingsllp.co.uk

First Corporate Manslaughter Trial - 01/02/2011

The first prosecution for Corporate Manslaughter commenced its Trial last week. This is the first prosecution brought under the Corporate Manslaughter & Corporate Homicide Act 2008. This Act allows companies themselves to be convicted of a criminal offence. For further information, please contact Sarah Shemmings at sas@shemmingsllp.co.uk.

The Equality Act 2010 - 23/11/2010

Discrimination by perception

Our employment specialist, Anthony Philpott, says that The Equality Act 2010 that came into force on 1 October 2010 is wide enough to cover both perceptive and associative discrimination. If the employer treats an employee less favourably because he or she is perceived to be homosexual for example this will be because of the protected characteristic of sexual orientation contained in the Act. In order to receive the protection of the Act a claimant merely has to show that he or she was perceived to have had the protective characteristic of age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex or sexual orientation. They do not have to show that they actually had one or more of those protected characteristics. If they are perceived as having one of the protective characteristics this will be enough to give them protection.

Associative discrimination

The Act also introduces protection against associative discrimination and upholds the European decision of Coleman -v- Attridge [2008] IRLR 722 when it was decided that where the employer treated an employee who was not disabled less favourably than another employee is, has been or would be treated in a comparable situation and it is established that the less favourable treatment of that employee was based on the disability of his child whose care is provided primarily by that employee this is direct discrimination contrary to Article 2 (2) (a) the "Equal Treatment" directive.

In this case it was decided that the "Equal Treatment Directive" is to be interpreted as meaning that the prohibition of harassment is not limited only to people who are themselves disabled. Where it is established that the unwanted conduct amounting to harassment which is suffered by an employee who is not himself or herself disabled is related to the disability of his child, whose care is provided by that employee then such conduct will be prohibited harassment and unlawful. The Equality Act 2010 now gives statutory force to this protection to such a Carer.

For more information please contact Anthony Philpott at our London office on 0845 345 1244 or alternatively by email at ap@shemmingsllp.co.uk

Legal 500 of leading Lawyers in the UK for 2010 - 11/11/2010

We are delighted that Tony Philpott our Employment specialist has been listed in the Legal 500 of leading Lawyers in the UK for 2010.

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Employment Law - Redundancy Consultation - 14/10/2010

Pinewood Repro Ltd T/A Country Print -v- G. Page [2010] UKEAT 0028_10_1310

A recent decision from the Employment Appeals Tribunal states that were a redundancy consultation takes place, that consultation must be fair and the employee who has been selected for the redundancy consultation must be given a "fair and proper opportunity to understand fully the matters about which it is being consulted and to express his views on those subjects" and, both views must be properly considered.

The message coming from the Tribunal re-emphasises yet again that the entire process must be open and that there must be proper time given to discuss and consider the reasons why that employee has been selected, and that employee is entitled in return to expect his views to be fully considered.

If you would like any further information please contact Sarah Shemmings of our London office on 0845 345 1244 or at sas@shemmingsllp.co.uk

Robert Shawyer - ICES' new representative to the CIC''s Liability Panel - 14/09/2010

Robert Shawyer, Partner based at our Cardiff office, has been appointed as the Chartered Institution of Civil Engineering Surveyors representative to the Construction Industry Council''s Liability Panel. The panel, chaired by Frances Paterson MBE, is one of CIC''s longest runninng committees.

Robert was approached for the position as a member of the ICES Contracts and Dispute Resolution Panel.

Robert can be contacted at our Cardiff office on 02920 474 570 or alternatively by email at rjs@shemmingsllp.co.uk

Adjudication Enforcement: Fileturn Ltd -v- Royal Garden Hotel Ltd [2010] EWHC 1736 (TCC) - 21/07/2010

Silver Shemmings successfully acted for Fileturn Limited in their application for summary judgment to enforce an adjudicator''s decision given in their favour.

Royal Garden Hotel Limited defended the application on the basis of apparent bias on the part of the adjudicator. This was because they found out that the adjudicator had been a Director of the company acting for Fileturn. Although the adjudicator had left that company some 6 years previously they still considered that this was information that should have notified to them at the start of the adjudication. The Judge, The Honourable Mr. Justice Edwards-Stuart found that there had been no bias and that Fileturn were entitled to enforce that decision.

If you would like any further information please contact Sarah Shemmings on 0845 345 1244 or alternatively by email at sas@shemmingsllp.co.uk

Silver Shemmings welcome Julie Haigh on board - 09/07/2010

We are delighted to annouce that Julie Haigh has joined us as a Consultant working out of our Cardiff office. Julie specialises in Commercial Property and Land Law aswell as the specialist area of Maritime Law.

Julie can be contacted on 02920 474 570 or alternatively by email at jah@shemmingsllp.co.uk

Health & Safety Enforcement. - 17/06/2010

Health & Safety issues continue to dominate the construction press. Following a blitz by the HSE on various sites it is estimated that about 1/3 of them failed their inspections and enforcement action is currently being taken against a number of companies.

Despite all of the Guidance given by the HSE, accidents in the construction industry continue. In April 2010 a company was fined £3,000.00 when one of its employees suffered serious electrical shock after touching one of its machines; only a few days ago the construction firm was fined £10,000.00 when one of its operatives fell and was severely injured. In this case the building owner was also prosecuted and fined £5,000.00.

The HSE estimate that over 4,000 workers suffered injury from falling from a height last year. The company was prosecuted and admitted breaching Regulation 3(1)(a) of the Management of Health & Safety at Work Regulations 1999 by failing to make a suitable and sufficient assessment of the risks of working on a roof; breaching Regulation 9(1) of the Work at Height Regulations 2005 by failing to take reasonably practicable steps to prevent a person working near or on a fragile roof; and breaching Regulation 4(1)(c)(i) of the Construction (Design & Management) Regulations 2007 by failing to ensure that employees working on a roof were competent to do so.

The HSE have demonstrated again that they will prosecute where there are breaches of regulations especially where employers have apparently disregarded and failed to take proper precautions to ensure the safety of their workforce.

For more information in respect of prosecutions and Health & Safety generally, please contact Sarah Shemmings at sas@shemmingsllp.co.uk

Hip Hip Hooray! - 02/06/2010

One of the immediate actions taken by our new coalition Government was to cancel HIPS - the requirement for any seller of a domestic property to have a Home Information Pack ready for inspection by a potential purchaser.

These Packs were always unpopular and seen as an unnecessary expense. However in the Pack was an Enery Performance Certificate ("EPC"). This showed the current energy performance of the property and what it could be if proper insulation measures were put in place.

The requirement for an EPC still remains and any seller but have one of these Certificates. In the current climate and the problems with global warming, any steps that can be taken to reduce climate inpact must be welcomed.

Congratulations to Robert Shawyer, Partner - 30/04/2010

Congratulations to Robert Shawyer, the Partner based at our Cardiff office, who has become a Fellow of the Chartered Institute of Arbitrators. Robert already acts as an Arbitrator in disputes including construction claims and can be contacted at our Cardiff office on 02920 474 570 or alternatively by email at rjs@shemmingsllp.co.uk

What should a driving at work policy cover? - 22/04/2010

Road accidents happen everyday but up to a third are work related. Driving is part of work falls under Health & Safety legislation and as such employers should ensure that driving risks are effectively managed. This applies to all industries including the construction industry where driving is a regular part of the job.

Under the Health & Safety at Work etc Act 1974, employers have a duty to ensure as far as is reasonable practicable the health and safety of all employees whilst at work and that others, ie. members of the public, are not put at risk by such driving activities. This means that employers should carry out appropriate risk assessments and have applicable work policies all of which have to be regularly reviewed and updated if necessary. This applies to all employers and to those who are self-employed but it does not cover commuting to and from one's place of work.

What should a driving at work policy cover?

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Bribery Act 2010 and the Construction industry - time to clean up? - 16/04/2010

This Bill was rushed through Parliament to ensure that it became law before parliament was dissolved earlier this month. The Act is due to come into force later this year.

The Act deals with both direct and indirect bribery. Section 7 is the most worrying part of the Act as far as companies and commercial organisations are concerned.

Under this section, a commercial organisation is guilty of an offence where bribery was carried out either directly or indirectly by someone connected (possibly even tenuously) with that organisation even if the Company had no knowledge of the crime. The Company''s only defence is if it can prove that it "had in place adequate procedures designed to prevent persons associated with [the company] from undertaking such conduct". What exactly this means is as yet unknown and guidance is to be published by the Secretary of State in due course.

However, like it or not, the Act is on the statute books and companies have to now start taking steps to deal with this. The Construction industry is one that will be majorly affected by this new Act as the industry regrettably has a poor record in this area and the spotlight will be on it to clean up its act.

HSE - 15/03/2010

The HSE have announced that they will be carrying out a number of unannounced visits to building sites aimed at improving health and safety. The initiative started on 1st March 2010 and will be focusing on refurbishments and roofing works.



The construction industry is one of the most dangerous industries and last year, following a similar inspection initiative, inspectors visited 2145 sites and issued over 270 prohibition notices stopping dangerous activities.

Welcome to our new look website - 08/03/2010

Welcome to our new website which we hope provides more information on what we do. We also have a comprehensive search facility of our articles and news items. We are also pleased to announce that we have a link with Ann Glacki of Bliss Books who now provides us with her case summaries and to which we have added our own commentary. Please take a few minutes to explore this site.

We are also running another of our popular breakfast seminars on 23rd March. Please come an join us to hear Richard Silver talking about avoiding liability for delay and liquidated damages in construction contracts. We are also pleased to advise that our Cardiff have planned 4 seminars over the coming year - details are available on the website. The first one deals with adjudication.

Own Goal? - Health and Safety - Fire Risk Assessments - 08/03/2010

Whilst it was considered ironic at the time, a fire at the Fire Service College in Moreton-in-Marsh could not have happened in a more convenient place - after all, there would be no delay in putting it out. However, even more ironically, news has just emerged that the College had failed to keep up to date its own fire risk assessment .

The Regulations require all businesses to have a fire risk assessment which has to be continuously reviewed and up dated. The failure to do so can lead to a prosecution and a fine, especially if this comes to light after a fire. It would appear that no prosecution will be taken, but we doubt if they will ever default on this requirement again!

This is a good reminder that all businesses need to be sure that they keep up to date with their Health & Safety and Fire Risk assesments. Even more importnantly that they then act on the issues raised by those assesments.