Archive for September, 2009

The Consumer Partnership – Championing the Cause of Consumer Protection in Ghana

Sunday, September 20th, 2009

The Ghana Standards Board is at the centre of consumer protection in Ghana but there are a number of consumer groups whose objectives are also consumer welfare. Unfortunately, most range from the quiet to the mediocre to the ineffective but there are a few who are passionate and vociferous in the field. The Consumer Partnership is a dedicated consumer interest NGO based in Accra.

Lukas Twum of the Consumer Partnership says that there are three core areas of consumer protection: consumer advocacy, consumer education and comparative shopping. There may be many organisations who claim to be consumer groups but if they are not releasing results which enable people to compare and shop and if they are not talking to the public then, according to Lukas, they are not doing much. “Most people in Ghana do not recognise that they have something they need to protect, that is their consumer rights. For example, few people know that the Sale of Goods Act stipulates that a consumer is entitled to a refund within a specified period if they purchase a product that is defective. The main issue for Ghana is consumer education and whose responsibility it is,” Lukas said.

The Consumer Partnership focuses on the three core areas even though they have other strategic objectives as well. Their members sit on the Ghana Standards Board committee that formulates standards and provides input as consumer representatives. The Certification Mark Committee is the highest board and the last point of issue of certification commissioning the standard. The Consumer Partnership is represented on the board and has prevented authorisation for many products. They are particularly concerned with misleading labelling. Test results may pass a product as safe for use but it must also pass the consumer test too. If the ordinary consumer cannot figure what a product is or does then The Consumer Partnership will press to get it withdrawn.

Lukas is frustrated at the state of consumer protection in Ghana and challenges anyone who suggests that consumer groups in the country are weak. “What are we supposed to do?” he asks. “The Ghana Standards Board is deemed to support consumer organisations including financially, according to a ISO/IEC Statement on Consumer Participation in Standardization and so too is the Ministry of Trade under their new policy guidelines. Yet everything we do is at our own expense,” Lukas laments. Without the backing of certified laboratories whose results cannot be challenged, The Consumer Partnership and its individual members are liable to be sued if they make unfavourable statements about the standard of products on the market. Yet, the Ghana Standards Board charges consumer groups like The Consumer Partnership to undertake tests in its laboratories. “Who is supposed to pay for that?” Lukas questions critics.

Another major problem facing consumer groups is the disinterest of the media in consumer affairs. Press and broadcast media are key players in consumer education and even consumer advocacy but without significant financial resources it is very difficult to access the media. The Consumer Partnership have created a series of awareness raising consumer cartoons but they cannot afford advertising prices charged by the press. Lukas says that media houses are not prepared to publish a simple write up on an issue and that journalists want to be paid before they investigate a matter. The Consumer Partnership has even invited TV cameras to follow them into the market but they have shied away. Even if The Consumer Partnership does its own filming they cannot get it broadcast without first having to pay. Without proper funding, consumer groups, no matter how committed, are virtually powerless to effect landmark changes needed in the field of consumer protection.

Despite the handicaps, The Consumer Partnership is active in consumer advocacy. They are ready to advise and represent consumers in cases against manufacturers and sellers. However, they will not jump into any and every case that easily. The problem is that many consumers face problems because they didn’t follow the right course of action in the first place, the Consumer Partnership says. If they take on such cases they could lose credibility. People do not remember to ask for VAT receipts, they buy from roadside sellers over which there is no comeback, they build homes using uncertified masons and all manner of practices that could lead to trouble in the long run.

Consumers must learn to protect themselves first before agencies can really step in and assist. “It is all is a matter of effective consumer education and this is a national issue. People should not try to shift responsibility to some group somewhere,” Lukas said.

By: Oyaba Olatunji-Osei

About the Author:

For up-to-date reviews, commentaries and tips about the consumer environment in contemporary Ghana, visit my blog, Consumer Corner GH, at http://www.oyabaosei.blogspot.com

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Employment Law – Discrimination – Disability Discrimination – Duty to Make Reasonable Adjustments

Monday, September 14th, 2009


The recent case of McHugh v NCH Scotland [2006], concerned an allegation of disability discrimination. The employee commenced employment as a project manager for the employer, a children’s charity, in 1997. In 2001, she was certified unfit to work on the grounds of depression.

In August, the employee’s GP told the employer’s occupational health adviser that the employee continued to suffer from moderately to severe depression but would be able to return to work when her mood had sufficiently recovered. In December, the employer met with the employee in order to discuss the possibility of a staged return to work. The employee enquired as to whether the staged return to work would be possible to occur in the training section of the organisation. Unfortunately she was informed that there were no vacancies.

On the 1st of February 2002, the employee requested early retirement on the grounds of ill health. The employer told the employee that her application had not been submitted for approval as it had not been supported by the occupational health adviser, who on the basis of medical information from her GP, did not consider her to be permanently incapacitated as a result of her illness.

At a meeting in May, the employee and employer agreed to seek direction from a specialist medical report. The employer stated that it would welcome the employee back to work through a managed programme, which would require an indication of a return date as outlined by the results of a consultation with her GP.

In June, the employer was advised that the employee had instructed a solicitor and that it should not communicate directly with her.

The specialist report indicated that it was possible that the employee would return to health over a period of six to twelve months, but that it was unlikely she would be able to return to work in her previous capacity and that early retirement should be considered.

Based on that report, the occupational health adviser indicated to the employer that he did not consider the employee permanently incapacitated, as there was a possibility that her health could improve. In April 2003, at the request of the employee, the employer submitted a further application for early retirement to the occupational health adviser. The occupational health adviser refused to support the application.

A further independent medical assessment was then carried out. However, it also refused to support an application for early retirement. In May 2004, the employee resigned with notice.

Subsequently the occupational health adviser stated that he was unable to certify that the employee fulfilled the conditions for early retirement and that it would not be unreasonable to terminate her employment on the ground of capability. As a result, the employee brought proceedings before the employment tribunal claiming unlawful disability discrimination.

The tribunal allowed the claim on the grounds that the employer had failed to consider making reasonable adjustments in the form of increased physical support. The employer appealed against the decision to the Employment Appeals Tribunal (“EAT”). The employer submitted that the tribunal had erred in failing to consider justification for the breach of duty pursuant to s.5(4) of the Disability Discrimination Act 1995 (“the Act”). It argued that the tribunal ought to have addressed whether the employer had failed to make reasonable adjustments, rather than whether it had failed to consider making reasonable adjustments.

Furthermore, it was submitted that the duty to make reasonable adjustments was not triggered during the time when the employee was off work as there was no indication of a return date.

The appeal was allowed for the following reasons:

- it was common ground that there had been no finding on justification. It was held that was a matter of substance, as the employer had contended that the failure by the employee to consider (in conjunction with the employer) any further steps after she had insisted that all communication was to go through her solicitor constituted justification for any failure to comply with the duty. That was deemed both material to the circumstances of the case and substantial pursuant to s.5(4) of the Act. It had been an error by the tribunal to make no finding on justification, which was an employer’s defence to a finding of breach of duty. The finding of unlawful discrimination therefore had to be set aside.

- the duty was to make reasonable adjustments. The tribunal had recognised that the principal issue in the instant case was the failure of the employer ‘to consider’ reasonable adjustments. It found that it had so failed, and there that the judgment was inconsistent with previous authority and so could not stand.

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How Property is Divided Under New York’s Equitable Distribution Law

Wednesday, September 9th, 2009


The following is a somewhat simplified primer on New York equitable distribution law.

New York is one of the majority of states that employs an “equitable distribution” scheme to the division of property when there is a divorce. There are three steps to this process:

Classification of property (i.e., whether it is “marital” and subject to equitable distribution or separate and is awarded to the spouse in whose name it is titled); Valuation; and Distribution.

1. Classification.

There is a presumption that all property owned by the spouses, regardless of in whose name it is titled, is marital property to be divided “equitably” between them in the event of divorce. The spouse who claims that property is his or her separate property has the burden of proof to show that the source of the property falls in one of the “separate” categories:

(a) property that he or she had prior to the parties’ marriage that has not been placed in the joint names of the spouses.
(b) property that a spouse inherited, either before or during the marriage that remains titled in the name of the spouse who inherited it;
(c) property that was gifted to one spouse by anyone other than the other spouse;
(d) property that a spouse received as compensation for personal injuries in a law suit.

In all of these cases, the property claimed to be “separate” must not have been comingled with marital property or earnings or placed in the spouses’ joint names.

There are two exceptions to the stringent rule that separate property must not have been comingled with marital property:

(a) If funds (for instance, Husband receives an inheritance check of $100,000) are placed in the spouses’ joint account solely for convenience until the check clears and then are withdrawn and placed in Husband’s individual account that meets the other requirements of a separate asset, the funds will still be considered the Husband’s separate property.

(b) If there is no clear paper trail, but there is no other explanation for the source of the funds that are claimed to be separate, they may still qualify as a separate asset. By way of example, immediately prior to the marriage, the Wife has a bank account that contains $100,000. During the course of the marriage, she deposits her earnings into that account, and at the time of the parties’ divorce, the account contains $150,000, but only $50,000 can be traced to the Wife’s earnings, the
$100,000 may qualify as the Wife’s separate asset.

Property that falls into any of the above categories will be deemed the separate property of the spouse in whose name it is titled. Where things get more complicated is in determining whether the appreciation (i.e., increase in value) of separate property remains separate or is deemed marital. If the increase in value is due solely to market factors, it will be separate. For example, if at the time of the marriage, Husband owns 100 shares of stock that have a market value of $1,000 but during the course of the marriage the value has increased due to the stock market to $2,000, the entire amount will be his separate property. If, however, the increase in value of the asset is due to the efforts of either spouse, the appreciation will be deemed to be marital. For example, Wife has a small business that is worth $500,000 at the time of the marriage. During the course of the marriage, the Wife works in the business and it increases in value to $1,000,000. The appreciation ($500,000) will be deemed to be a marital asset.

The term “Property” in New York includes a very broad category of assets. Real estate, bank accounts, deferred assets such as 401(k) plans, IRA’s and pensions, tangible property such as furniture, art, automobiles, and certain intangible property such as licenses, degrees, and even “enhanced earning capacity” can be deemed assets subject to equitable distribution.

2. Valuation.

Once marital and separate property have been classified, it becomes necessary to value each asset. Bank accounts and other monetary assets are valued as of market value. When dividing those assets, it may be necessary to factor in any tax consequences, such as capital gains tax.

If an asset’s value is not readily determinable, it may be necessary to have it evaluated by an expert. Real estate appraisers and forensic accountants are the two experts most frequently called upon to assist in that process.

3. Distribution.

New York employs an “equitable distribution” of assets that does not necessarily mean an equal division of assets, although there has been a clear trend to divide assets equally, especially in long-term marriages. Factors that may be taken into consideration include the length of the marriage, the amount each spouse’s separate property, and whether either spouse has wastefully dissipated marital assets.

By: Diana Gittelman

About the Author:
Diana B. Gittelman is an attorney who specializes in divorce mediation. Diana practiced as a traditional divorce litigator in both New York and New Jersey for many years before getting training as a mediator in 1991, and has successfully mediated over five hundred divorces. Since 1996 she has worked exclusively as a mediator.

Please visit http://www.dbgmediation.com for more information.



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