Author Archives: Emma Degenhart
Endometriosis is a chronic and debilitating condition that affects approximately 1 in 10 women in the UK. March is Endometriosis Action Month, which aims to raise awareness of this condition and to promote better support for those living with it.
In this article, we will discuss how UK employers can support workers with endometriosis, and what legal obligations they have to do so.
What is Endometriosis?
Endometriosis is a painful condition where tissue similar to the lining of the uterus grows outside the womb. This tissue can grow on the ovaries, fallopian tubes, bladder, bowel, or other parts of the pelvic area. Endometriosis can cause chronic pain, heavy periods, painful sex, and fertility issues. Other factors include fatigue, nausea, and bowel or bladder problems. As the symptoms of the condition can be severe, they will often impact employment, so it is important employers understand the impact of this condition.
How does Endometriosis affect work?
Endometriosis can have a significant impact on a person’s ability to work. The pain and other symptoms can make it difficult to concentrate, sit or stand for a long time, and perform physically demanding tasks. As a result, women with endometriosis are more likely to take time off work, and they may experience discrimination and stigma in the workplace.
Employers’ legal obligations
Under UK employment law, employers have a duty to make reasonable adjustments to support workers with a disability or long-term health condition. Endometriosis is considered a disability under the Equality Act 2010 if it has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.
Reasonable adjustments employers can make may include:
- flexible working arrangements,
- providing extra breaks or rest periods,
- making adjustments to the work environment,
- additional support.
Employers should also have policies in place to prevent discrimination and harassment in the workplace.
Employers and Endometriosis
Endometriosis can have a significant impact on a person’s ability to work, and it is important that employers provide support to workers with this condition. Employers have a legal duty to make reasonable adjustments and support employees with endometriosis. By offering flexible working arrangements, reasonable adjustments, awareness and training, access to healthcare, and reviewing policies, employers can create an inclusive and supportive workplace for employees with endometriosis.
Eight Things to Remember When You’re Selling a House
Conveyancing can be a long and stressful process, but the work of conveyancers helps to reduce this significantly by taking on many of the more complex tasks. Selling a house can be daunting, and many legal considerations need to be taken into account to ensure a smooth and successful sale, such as providing an Energy Performance Certificate and completing Property Information Forms. It is also important to consider issues such as property boundaries, Capital Gains Tax, and the conveyancing process itself. Understanding what each of these issues includes can help you understand the work of your conveyancer.
This article will explore eight important issues that have to be considered when selling your home in England and Wales, many of them are legal considerations that your solicitor will take care of as part of their standard processes. This Conveyancing Week, look to understand the work being carried out by many conveyancers behind the scenes, helping sales and purchases to go as smoothly as possible. Plus, whether you are a first-time seller or have sold properties before, understanding what goes on behind the scenes can help ensure a successful and stress-free sale!
National Conveyancing Week
National Conveyancing Week runs from Monday 20th March to Friday 24th March, and focuses on shining a positive light on the work of conveyancers. Much of the work done by those in this profession goes unseen and can be complex, leading to misunderstandings about what is involved. A lot goes into selling a property, but these experts do it each and every day, despite the challenges faced!
1 – Conveyancing
The conveyancing process involves transferring legal ownership of the property from the seller to the buyer. It is essential to work with a qualified solicitor or conveyancer who can handle the legal aspects of the sale, including the drafting and review of contracts, the transfer of funds, and the registration of ownership with the Land Registry.
2 – Energy Performance Certificate (EPC)
An EPC is required when selling a residential property in England and Wales. The EPC rates the energy efficiency of the property on a scale from A to G, with A being the most energy-efficient. The certificate is valid for 10 years and must be provided to the buyer before the sale is completed.
3 – Capital Gains Tax
Subject to certain conditions, you do not need to pay Capital Gains Tax when you sell your home. If you sell a property that isn’t your home, or you live abroad, you may need to pay Capital Gains tax. A specialist tax advisor can help you understand whether any tax might be payable.
4 – Property Information Forms
When selling a residential property, the seller is required to complete a Property Information Form and a Fittings and Contents Form – so your conveyancer will make sure this is complete by sending you all the relevant paperwork, and help you complete it.
The Property Information Form provides the buyer with details about the property, such as any disputes or complaints with neighbours, building work or renovations, and any guarantees or warranties that are still valid. The Fittings and Contents Form lists all the items that are included in the sale, such as appliances or light fixtures.
5 – Property Boundaries
It is important to ensure that the property boundaries are clearly defined and any disputes with neighbours over the boundaries are resolved before completing the sale. This can be done by checking the title deeds, commissioning a survey, or consulting with a solicitor.
6 – Estate Agent’s Fees
If you are using an estate agent to sell your property, you will need to pay their fees, which are typically a percentage of the sale price. It is important to shop around and compare fees from different agents to ensure you are getting a fair price.
7 – Repairs and Renovations
It is important to consider any repairs or renovations that may be required before putting your property on the market. Addressing these issues before the sale can help to increase the property’s value and make it more appealing to potential buyers.
8 – Timing
The timing of your sale can have a significant impact on the price you receive and the speed of the sale. Factors such as the time of year, market conditions, and the state of the economy can all impact the sale price. It is important to consider these factors when deciding when to put your property on the market, and to be prepared for the possibility that the sale may take longer than expected.
A crack-down by British Airways on social media posting by staff has highlighted the challenge for employers in keeping policies up to date in a fast-moving digital environment.
The new guidance from the airline bans staff from posting when they are ‘professionally engaged’ or including any potentially sensitive content that could pose a risk to the business, customers or colleagues, whether on or off duty.
But the policy change is upsetting many crew who have been posting from the cockpit with images of stunning skylines, and sometimes celebrity passengers.
“It’s understandable that this decision may disappoint those who have amassed a large following with their behind-the-scenes look at aircraft and the exciting locations they journey to,” said Miss Amy Cusworth, employment lawyer with Rotherham-based solicitors Oxley & Coward Solicitors LLP.
“But BA’s approach is an important reminder for all employers to review and update their social media policies regularly and provide refresher training to their workforce – particularly with new apps creating new challenges.”
One social media app which has attracted huge interest in recent months is BeReal, which invites users to share authentic real-time photos with friends as an antidote to the highly staged, filtered images that have become commonplace.
From being relatively unknown in early 2022, BeReal has become one of the top five downloads in the UK, but is under scrutiny for its potential impact in the workplace.
The app notifies users at a random time each day to capture a picture within a two-minute timeframe, showing themselves in the moment, whatever they are doing. This is causing headaches as it can lead to employees inadvertently sharing confidential information if they take photos at work that include computer screens or papers on their desk.
Miss Cusworth added: “To guard against such situations, employers need a robust social media policy in place, which sets clear guidelines for employees’ use of social media both in and outside the workplace.
“The policy should include awareness of company reputation, protection of company confidential information, third-party confidentiality, appropriate use of company resources, and guidelines on appropriate use of social media, among other things. Most importantly, staff need to be regularly updated and trained on the policy.”
If an employee accidentally discloses confidential information on social media, the employer should take prompt action, including disciplinary proceedings if necessary. For employers in regulated sectors such incidents may require a report to their regulator and confirmation that steps have been taken to prevent a repeat occurrence.
[This is not legal advice; it is intended to provide information of general interest about current legal issues]
Eight Things to Remember When You’re Buying a House
Buying a house is one of the most significant investments that most people make in their lifetime. Whether you are a first-time buyer or an experienced property investor, the process of buying a house can be daunting and complex. In addition to finding the perfect home, there are numerous legal considerations that you need to keep in mind when purchasing a property, but that is where your solicitor comes in. As experts in conveyancing, they will know the property market inside out and the processes involved in buying your dream property.
If you are buying a house in England and Wales, there are several important legal aspects that must happen to ensure a smooth and successful transaction. In this article, we will outline eight crucial legal issues that your conveyancer will assist you with when buying a house in England and Wales to help you navigate the process with confidence.
1 – Conveyancing
Conveyancing is the name of the legal process of transferring the ownership of a property. You should engage with a solicitor to handle the legal aspects of the transaction, as it can be complex, and there are clear procedures that need to be followed.
2 – Property searches
Your solicitor will carry out a range of property searches to check if there are any potential issues with the property which could affect your use or enjoyment of the property. These could identify, for example, whether the property is listed, subject to a tree preservation order or whether there are highways or planning decisions that could affect the property. Once these searches have taken place, the solicitor will report back to you about any issues they found, or if there is any cause for concern.
3 – Stamp duty
Stamp duty is a tax that you need to pay when you buy a property over a certain price. The rules and rates for stamp duty vary depending on the value of the property and other factors.
4 – Exchange of contracts
Your solicitor will have negotiated the terms of the contact with the seller. The transaction is the point at which the buyer becomes legally committed to buying the property and the seller is legally committed to sell it. Your solicitor will explain the terms of the contract to you and the implications of the exchange of contracts.
5 – Completion
At completion, the purchase price, taking into account any deposit paid at exchange of contracts, is paid to the seller and the buyer becomes the owner of the property. Your solicitor will tell you when this has happened and you will be able to collect the keys from the estate agent.
6 – Property ownership
There are two types of property ownership in England and Wales: freehold and leasehold. Your solicitor will carry out a search of the Land Registry to find out whether the property you are buying is owned on a freehold or leasehold basis. Your solicitor will explain the implications of this to you and any obligations that you might have to fulfil if you buy the property.
7 – Mortgage
If you need to take out a mortgage, it is important to understand the terms and conditions of the mortgage agreement. Mortgage advisors and solicitors often work together, helping protect your interests and offer the best financial options for you.
8 – Property insurance
It is important to arrange adequate insurance coverage for the property, both before and after completion. Your solicitor will help you to identify what types of insurance you might need and when you might need them.
National Conveyancing Week
National Conveyancing Week aims to shed a positive spotlight on the vital work carried out by conveyancers, from Monday 20th March to Friday 24th March. Despite the complex and often unseen nature of their work, these professionals are responsible for successfully completing property sales on a daily basis. Misunderstandings about the intricacies of the conveyancing process can lead to confusion, but the experts in this field rise to the challenges they face to ensure a seamless experience for their clients!
While a ‘prenup’ can be difficult to discuss with your partner, and may seem unromantic to factor into your wedding planning list, it’s important to understand the benefits of having one and to discuss it openly and honestly. This article will explore the advantages of having a prenuptial agreement, who should consider one, and how to get one.
What is a prenuptial agreement?
A prenuptial agreement, or ‘prenup’ for short, is an important legal document that couples should consider when getting married. A prenup is an agreement between a couple that details how their assets and liabilities will be divided if they divorce or if one dies. It also outlines the rights and responsibilities of each party in the marriage.
Advantages of having a prenuptial agreement
A prenup does several things for a couple considering marriage. First, it helps protect both parties’ assets in case of a divorce or death. The prenup helps to ensure that the couple’s assets are divided fairly.
Another benefit of having a prenup is that it can help to reduce the amount of stress and conflict that can arise during a divorce. By having a prenup in place, both parties know exactly what to expect if their marriage does not work out; this can help reduce the time and money the couple would have to spend in court and make a divorce smoother for all involved.
A prenup can help to protect a partner’s assets, such as business interests, inheritances, and investments. This can be particularly beneficial if one partner has accumulated a significant amount of wealth before the marriage.
Are prenuptial agreements useful for everyone?
Traditionally, prenups were most commonly used amongst celebrities and the super-rich; however, there is a benefit in having a prenup in place for all marriages to safeguard your future.
In fact, anyone getting married should consider having a prenup in place.
Additionally, anyone with children from a previous marriage should consider having a prenup. This is because the prenup can help protect the children’s assets if the marriage does not work out.
How to get a prenuptial agreement
In the UK, there are no procedures in place to make a prenuptial agreement automatically legally binding. However, they are still relied on in court and divorce proceedings as long as the below criteria are met:
- Both parties have received legal advice and have their needs met by the agreement.
- The prenuptial agreement must be fair, contractually valid, understood by both parties and made at least 28 days before the wedding.
- Children should not be prejudiced.
How to discuss a prenup with your partner
Discussing a prenup with your partner can be a difficult and sensitive subject. It’s important to approach the subject with an open mind and respect each other’s opinions. Be honest with your partner about why you think a prenup is necessary. Explain that both parties have certain rights and responsibilities and that a prenup can help protect those in the event of a divorce or death.
Finally, it’s important to be open to negotiation. Both parties should be willing to compromise in order to come to an agreement that is fair for both parties, and the agreement being fair is a condition for it to become legally binding.
New legislation is set to place greater responsibility on organisations to protect employees against harassment, including sexual harassment.
Employers are being urged to act in readiness, with the proposed legislation set for its third reading in February and expected to become law during the next year.
Harassment in the workplace is prohibited under the Equality Act 2010 and once passed, the Worker Protection (Amendment of Equality Act 2010) Bill 2022-23 will extend the range of safeguards for employees. One is protection against third party harassment during the course of their employment, such as by customers or clients, and the employer may be held liable if they fail “to take all reasonable steps to prevent the third party from doing so”.
The Bill also tackles sexual harassment suffered by employees in the course of their employment, by placing a new duty on employers to take all reasonable steps to prevent such harassment.
“While the Bill is still going through parliament, employers should be gearing up in readiness, and ensuring the right processes are in place,” explained Miss Amy Cusworth, employment lawyer with Rotherham-based solicitors Oxley & Coward Solicitors LLP.
“The benchmark is likely to be high, to encourage employers to be proactive in tackling discrimination in the workplace. While the term “all reasonable steps” is not defined by statute, we know from existing case law what is expected of an employer. Any tribunal will be looking for robust policies and evidence of steps taken to actively prevent harassment.”
Miss Cusworth added: “It all adds up to a tough new round of legislation for employers. The harassment by third parties can relate to someone over whom the employer has no direct control, with liability set to apply whether or not the employer is aware of the actions of the third party.
“And the penalty will be higher where the employer is found to have breached their duty for any sexual harassment claim, as an uplift of up to 25% of the compensation award is currently proposed to be added on.”
[This is not legal advice; it is intended to provide information of general interest about current legal issues].
The clock is ticking for overseas companies with property interests in the UK to comply with new money laundering legislation.
Any overseas entity planning to buy, sell or transfer property or land in the UK, or that owns property in the UK must now be verified and registered at Companies House, with registration completed before the end of January 2023, and with annual reporting in future.
The legislation applies to any legal entity, such as a company or other organisation, that is governed by the law of a country or territory outside the UK. The Republic of Ireland is an overseas jurisdiction for the purposes of the legislation.
And the requirement to register is not just for future sales and purchases; it also applies to disposals completed in the last year. The sanctions for non-compliance are significant and can include restricting future transactions of any UK-owned land or property.
The Register of Overseas Entities came into force in the UK on 1 August 2022 through the Economic Crime (Transparency and Enforcement) Act 2022 and requires overseas entities that own land or property in the UK to declare their beneficial owners and/or managing officers.
The requirement applies to all overseas entities who bought property or land in England and Wales since 1 January 1999, or 8 December 2014 in Scotland, and on or after 1 August 2022 in Northern Ireland. Any overseas entity that disposed of property or land since 28 February 2022 will also need to be registered.
Before the registration can take place, an agent must complete verification checks on all beneficial owners and managing officers to be named. The agent must be based in the UK and supervised under the Money Laundering, Terrorist Financing and Transfer of Funds Regulations 2017. They can be an individual or a corporate entity, such as a financial institution or a legal professional.
Once registered, the overseas entity will get a unique Overseas Entity ID which will be required by the UK Land Registry when there is a purchase, sale, transfer, lease or charge over UK property or land.
Said property expert Sue Richmond-Sterry of Rotherham-based law firm Oxley & Coward Solicitors LLP: “This isn’t a one-off requirement, as the overseas entity must file an annual update to confirm information is still current, or to notify changes. Because of the need to keep up to date with legislation and reporting requirements, ideally any overseas company with UK property interests will be using a UK-based professional to ensure they keep abreast of the situation.
“The aim of the legislation is to achieve greater transparency and allow law enforcement to more easily identify and tackle situations where there are suspicions over sources of wealth and funding.”
[This is not legal advice; it is intended to provide information of general interest about current legal issues.]
As the year get underway, deals crop up for gym contracts everywhere. As with any contract, it is good to know what you are agreeing to before signing it, and it can be overwhelming to decide what is the best choice for you when there are so many deals available throughout January.
In this article, we help you know what to look for before signing a contract for a new gym.
Fixed term contracts
You will often receive a better offer from a gym for signing a longer contract, and although this might save you money upfront, it isn’t always the most future-proof option. However, in recent years, more protection has been offered to consumers who face changing circumstances, particularly unforeseen circumstances such as illness or losing their job.
When considering different deals and contracts, always check the minimum term the agreement will last for and if there is a fee or notice period to cancel after this. At times this term may be unfair. Below we look at the legal protections offered to you if they are unfair terms.
Breach of contract
Sometimes the gym facility will be in breach of contract, giving you the grounds to challenge them. For example, if your gym also offers access to a swimming pool, but this is closed, you could seek a reduction in fees.
Breach of contract is individual to each agreement, and the wording can offer the facility protection, which is why it is always important to review the contract before signing it. It is important to know your options if the gym breaches the contract, such as what compensation you are entitled to if any facilities were to close or be unavailable during your contract term. Just as you are liable for failing to meet your obligations, the gym are too.
Unfair terms
The Consumer Rights Act 2015 protects against unfair terms within a contract or an overall unfair contract. Before signing any contract, you should always read it carefully. If you feel there are any terms you don’t understand or contradict what you have been told, then speak with a representative at the gym to get some clarification. It is always important to fully understand a contract before signing it, and the staff should be more than happy to discuss it.
What to look out for in your new contract
Important terms to look out for and ensure you understand include:
- Contract renewal – Does the contract automatically renew? Will you be charged for this if you don’t cancel in time? Will you be notified before the renewal?
- Length of contract – Is the contract fixed term, e.g. 12 months? Can you cancel the contract at any time, or is there a cancellation fee?
- Cancelling the contract – How do you go about cancelling the contract? Is there a notice period when you are still liable to pay?
- What is included in the contract? Sometimes a gym membership can include classes, access to a pool, sauna or other additional facilities – are these included in your cost or for an additional fee?
- What are the remedies for a breach of contract? If all the facilities are not available to you, are you owed compensation, such as a pause in membership fees?
As with any contract, you must ensure you read it, understand it and also have a copy of the signed contract, whether this is physical or digital. Taking the time to review before you sign and ask questions on anything you are unsure of will help you step into the new year, and your new gym, with confidence.
Family Mediation Week runs from 16-20th January 2023. This is a campaign run by the Family Mediation Council to raise awareness of family mediation and of the benefits it can bring to separating families.
Mediation has many advantages over going to court, including being faster, cheaper, and allowing the parties to remain in control and resolve important issues with dignity and respect. This article looks at these benefits and how mediation might work for you and your family.
What is family mediation?
Family mediation is a process in which an impartial third-party mediator helps separating couples resolve disputes and make lasting arrangements for the future of them and their family, without going to court.
Benefits of family mediation to resolve disputes
Overall, using family mediation to resolve issues has several advantages over going to court, and is well worth considering.
A faster resolution
One of the biggest benefits of mediation is that it allows for a faster resolution than the traditional court process. This is because mediation is a voluntary process, with no set court timetable or deadlines to adhere to. This means that the parties involved can work at their own pace and resolve their dispute as quickly or as slowly as they need. This flexibility is especially useful if the parties involved cannot meet at the same time or place, as mediation can usually take place over the phone or online.
Costs
Another advantage of mediation is that it is much cheaper than going to court. This is partly because no court fees need to be paid, and there are no legal expenses to be incurred. Mediation can also be a much quicker process than going to trial, which means the costs associated with the process are lower. In addition, mediation can take place anywhere convenient for the parties involved, meaning that travel costs are also reduced.
More control
The parties involved in mediation also have much more control over the process than they would in a courtroom. This means they can tailor the process to suit their needs rather than adhere to court rules or procedures. For instance, the parties can decide to have their mediator present for the duration of the process or to have both parties present for the entire process. This is not possible in a court process, where the judge makes all decisions.
Preserve relationships
Finally, and potentially the most important in family mediation is that it has the added benefit of preserving relationships between the parties involved. This is because it is a non-adversarial process, allowing the parties to come together to find a solution that works for both. This is not possible in a courtroom, where the parties are usually pitted against each other, and the judge usually determines the outcome.
We all appreciate receiving Christmas gifts, but sometimes they need to be returned. This could be for various reasons, from clothes that don’t fit, or maybe you already own them. It might even be faulty or simply isn’t something you want or need.
This article looks into the rules surrounding returning goods and what rights you have to return or exchange an item.
Goods bought in store
When it comes to returning goods that were bought in-store, legally, there is no protection for you or the buyer to be able to receive the money back or an exchange unless the goods are faulty. But, most shops have a more lenient customer-focused approach to this issue, often offering a refund, credit note or an exchange.
While stores have no legal obligation to return the goods unless they are faulty, it is always worth asking. Return and exchange policies are specific to the company, so you should always check your options based on the particular policy.
Goods bought online
If a gift is purchased online, there are more legal obligations for the seller and protections for the buyer. As a recipient of a gift, this doesn’t necessarily help you, but if you speak with the person who gave you the gift, and it was delivered to them less than 14 days ago, then a return can be made.
Christmas returns policies
As discussed, many shops have their own policy on returns, with around 14 to 30 days being the norm for many high street retailers, such as H&M 28 day return policy or M&S and their 35-day return policy. As with all return policies, this is individual to each business so you should always check.
On top of the longer 30-day return options that are seen all year long, often around Christmas, many online retailers have extended return policies. For M&S, any purchases made from October 31st until Christmas Eve can be returned up until January 31st rather than their typical 35-day window. H&M extends their period into the New Year, with purchases made between the 14th of October to 6th of January, having a cut-off date of the 31st of January. ASOS, Amazon, Argos, Boots, John Lewis and several other retailers also all have an adapted holiday returns policy, giving you typically until the end of January to make your return.
Finding a return policy
Typically, return policies can be found on a company’s website. If you can’t spot a page aimed at return policies, check the FAQs or their customer support page. Many stores will require a receipt or another proof of purchase, making returns difficult for gift recipients if they do not receive the gift receipt.
Often as a goodwill gesture, the person returning the goods will receive an offer of an exchange or a credit note, such as a gift card. Occasionally, you may also be offered a refund, but this is unlikely, especially if you do not have the receipt.
Faulty goods
If the gift you received is faulty, you are more likely to receive a refund. The law offers protection for 30 days from purchase; goods that are found to be faulty can be refunded. When 30 days pass, a replacement or repair should be available. Some stores will extend the refund policy beyond these 30 days, but this is not required by law. If you have received the product as a gift and you have the gift receipt, any extended right to a refund will usually transfer to you.
So can I return unwanted presents?
There is no harm in trying to return a gift if you have a receipt or another form of proof of purchase. If you haven’t received this and still want to return the gift, you will likely need to speak with the person who bought it to get it before making the return.
It is important to remember that a business has no legal obligation to accept a gift back. There is also no obligation to refund the money, so more often than not, it will be an exchange or credit note you receive.
Ultimately, it really depends on the store and the business. The policy can differ from store to store, so you should always check. When possible, you should always get the gift receipt and keep a hold of them too!
January is the time of the year we all start making plans for all those things we hope to achieve across the year laid out in front of us.
What better time could there be to decide if the house you are in is the home you want to see yourself or your family in before next year? In this article, we look at why January is a good time to start preparing to sell and just how you can do that.
The market refreshed
Traditionally the housing market takes a small decline from October through to December, before a rush of property is added in the spring. This is thought to be due to people not wanting to move in the lead-up to the festive season, but it is also very understandable that the thought of trying to transfer all of your valuable possessions from one house to another on a cold winter’s day is not one to warm many hearts.
Come the New Year, people start to look once again at taking that first step or the next step on the property ladder. If you’re looking to sell within the year, now is the time to start making those plans a reality, letting you get on the market before everyone else. The sooner you get your property on the market, the sooner you can instruct a conveyancing solicitor who can begin to prepare all the basic documents you will need to sell your home, helping to speed up the process.
Spring sales
The vast majority of homeowners who choose to sell do so in the spring, leading to a saturated market full of competition for those looking to sell. It becomes a buyers’ market which can lead to deflation in the price you can hope to achieve. If you have a valuation you aim to sell at or even need to meet to make a move worthwhile, this could take longer during this period.
There is also more chance of being stuck in a property chain when the market is busier, extending your selling process as there will be buyers before you. The conveyancing process for a buyer is typically longer since there are more steps involved. Selling in the early part of the year allows your property to be seen before others join the marketplace making it far easier for your property to achieve its potential, and it is likely you will be earlier in the chain. As the market becomes more saturated, the time it takes for conveyancing also becomes longer, meaning you could wait months before you get your new property.
Getting ready to sell
Selecting your conveyancing solicitors early on can help you find the right team for you, making it easier along the way to have open communication. As a seller, conveyancing has fewer steps but instructing a solicitor when you decide to list your house allows the paperwork to start early and hopefully prevents delays when a buyer is found.
A big part of moving home is being ready for that big move day. So why not take advantage of the colder weather and that natural tendency to want to stay indoors to declutter? Clearing out those things you no longer want or need helps you make things easier when it comes to moving and will have the added advantage of making the presentation of your home for sale so much easier too.
New year, new property
So, if you’re considering selling, why don’t you start getting ready now? Adding your property to the market before there is more competition could lead to a better sale for you. The sooner you begin finding and instructing a conveyancing team, the smoother the process is likely to go. Plus, getting your home ready is a perfect New Year’s resolution.
Tough economic conditions and spiralling costs are expected to add to the pressure on couples facing the Christmas period.
The new year often brings news of the unhappy couples who have decided to call time on their relationships, leading to so-called Divorce Day, as family lawyers receive a surge of enquiries when they re-open after the break.
And with the additional burden of the cost-of-living crisis, there are calls for greater support for couples as the holiday season gets into full swing, by encouraging better understanding of options if separation becomes inevitable.
Earlier this year, no-fault divorce was introduced, which saw a surge in applications from couples looking to avoid the blame game, but professionals say many challenges lie ahead for couples leaving a marriage.
According to the latest figures from the Ministry of Justice there has been a 22% increase in the number of divorce applications, including dissolution of civil partnerships, compared with the same period in 2021. More than 33,000 applications were made between April and June 2022, but there was a decrease in financial remedy applications, which were down 31%.
The new Act was a long-awaited change allowing married couples to issue divorce proceedings without assigning blame. Only a statement of irretrievable breakdown is needed and it makes it possible to file for divorce jointly, so couples can reflect a mutual agreement to part. During April to June, 22% applied jointly, with 78% coming from sole applicants. Previously, the only alternative to blaming one partner for adultery, desertion or unreasonable behaviour was to go through a period of separation.
But for those working at the front-line, the shift towards ‘no-blame’ may be obscuring the increasing difficulty faced by couples looking to separate. For some couples, the cost of living may mean they have to continue to live together, even when officially separated, or even post-divorce, including so-called ‘bird nesting’ arrangements, where the children stay in the family home and the parents come and go.
And although the process of securing a divorce has been made less adversarial, the associated negotiating over finances and children is becoming an increasing challenge and, in some cases, is overlooked through lack of knowledge.
Many are managing the process themselves, turning to online help or untrained mediators, only to discover later that they may have agreed financial or childcare outcomes that leave them at a significant disadvantage, when professional advice and representation may have reached a fairer outcome.
Said family law expert Katie Harrison of Rotherham-based solicitors Oxley & Coward Solicitors LLP: “No-fault divorce was intended to provide divorcing couples with a more amicable divorce process, through removing the need for blame and allowing for joint applications. This is a really positive step forward but having an amicable divorce does not remove the need to have security in the form of a financial consent order.”
When a couple are divorcing, they can apply for this form of legal document from the court, which sets out the full detail of financial agreement between the divorcing parties. It does not require them to appear in court themselves, which can be both daunting and costly, but simply confirms the agreement they have made on finances and assets.
The consent order can include details of how assets will be divided, including cash, property, pension funds and other investments, and can also include arrangements for maintenance payments, including child maintenance. Both parties have to agree and sign the draft consent order and a judge will consider the terms to make sure they are fair, reasonable, and demonstrate a fair division of assets. If so, the court will approve the agreement to make it legally binding. The consent order will generally include a clause to stop ex-spouses raising subsequent financial claims against each other.
Katie Harrison added: “Without this form of closure, either spouse can make a later claim or ask for financial support in future. A case which demonstrates how this may leave a time-bomb ticking was heard by the Supreme Court in 2015, when a former wife wished to make a claim for a share of the fortune amassed by her husband 30 years after they parted, as no binding consent order was made when they divorced.”
The couple had met and married in 1981 and had a child in 1983, separating just one year later. The wife became a full-time single parent with little income, and had little contact with her ex-husband, who went on to make a fortune through a green energy company he founded in the 1990s. And the Supreme Court granted permission for Kathleen Wyatt to lodge a belated claim against multi-millionaire Dale Vince, said to be worth £57m.
Another significant issue for parting couples comes in the complexity of capital gains tax liabilities following separation. When a couple first separate, transfers and disposals made during the current tax year can be on a ‘no gain, no loss’ basis. But once outside that first tax year, matters become complex and could involve tax charges on the spouse or civil partner who is transferring the asset. And the likelihood of this rises as financial matters are increasingly complex, and many divorces take longer to complete.
Better days may be on the horizon on this front, as the Government has proposed legislation to change the rules for disposals that take place on or after 6 April 2023. These proposed changes would extend the window of ‘no gain, no loss’ transfers and disposals to three tax years after the end of the tax year of separation, or where there is a formal court order with no time limit.
We have written further on this topic : click here to read more (This refers to a press service story distributed in August 2022 and if this has been published on your website, then it could be linked here)
Another cause for concern among family professionals is that couples navigating divorce without guidance may overlook the importance of pension sharing, particularly where a primary caregiver to children may not have been able to acquire their own pension pot. Figures released under a Freedom of Information request show that while only around 13 per cent of the 602,491 divorces settled in court between 2016 and September 2021 included orders to share retirement savings fairly, where the court is involved, couples are more likely to find an order for pension sharing.
She added: “Having tough talks while remaining amicable may seem a challenge, particularly when you are in an emotionally difficult position, which is why it is so important to get some help in having those difficult conversations. It may be a lawyer, but it may equally be a mediator or some other expert, and they can help ensure that there is a reasonable outcome for both of you, which should be possible without needing to have a day in court if both sides are supported in reaching agreement.”
[This is not legal advice; it is intended to provide information of general interest about current legal issues].
Businesses must ensure they are on the right side of the regulations when it comes to advertising or posting on social media.
The reminder follows the news that the Ministry of Justice (MoJ) breached advertising rules when they conducted a recruitment campaign to recruit prison officers.
The photograph used in the advert showed a white prison officer interacting with a black inmate. A complaint was made to the Advertising Standards Authority (ASA) on the grounds that the advertisement perpetuated negative ethnic stereotypes.
The Ministry of Justice (MoJ) is the government department which is responsible for delivery of the country’s justice system and their stated aim is to “protect and advance the principles of justice… to deliver a world-class justice system that works for everyone in society”.
When challenged over the advertisement, which ran on Facebook for three months earlier this year, the MoJ explained that the photographs used throughout the ad campaign, of which this was one example, featured real officers and prisoners. They argued that there was no intention to portray a black man as a criminal, it was simply one example of a real person who had been convicted of an offence and should be considered across the whole campaign.
The ASA disagreed with the MoJ’s argument, saying the post should be considered as a stand-alone item, as Facebook users would have experienced it. And they decided that the ad was likely to cause serious offence on the grounds of race, by reinforcing negative stereotypes based on the association between black men and criminal activity.
The ASA is the UK’s independent advertising regulator and is responsible for making sure that ads across UK media stick to the advertising codes, which are written by the ASA’s sister organisation, the Committee of Advertising Practice (CAP).
The advertising codes reflect the law, and the CAP code which applies to non-broadcast advertisements, sales promotions and direct marketing communications includes postings on social media.
The ad breached CAP Code (Edition 12) rule 4.1 (Harm and offence), which requires particular care must be taken to avoid causing offence in relation to those characteristics protected by the Equality Act 2010, and cover age; disability; gender; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
In their ruling, the ASA said: We considered the ad’s focus on the positive qualities of the white prison officer and negative casting of the black prisoner was likely to be seen as perpetuating a negative racial stereotype.”
“This ruling demonstrates how important it is to have strong procedures and processes for checking all media activity by an organisation,” said employment expert Miss Amy Cusworth of Rotherham town solicitors Oxley & Coward Solicitors LLP.
She added: “As well as careful checking of advertising and direct marketing campaigns which may be developed by external agencies, commercial organisations need to have clear guidelines and control over their entire social media output.
“It’s not just paid-for content that falls under ASA guidelines, as they also oversee all social media postings, whether on Facebook, Twitter, TikTok, Instagram or elsewhere, making this a minefield to manage whether delivered internally or externally.”
[This information is not intended as legal advice]
A ruling on the responsibility of directors towards creditors has been welcomed as companies face challenging economic times ahead.
The long-awaited ruling on the so-called ‘creditor duty’ in BTI 2014 LLC v Sequana SA is important in clarifying the legal duties of directors to consider, or act in accordance with, the interests of creditors as a company approaches insolvency.
When a company is financially secure, corporate decisions are largely made on the basis of the best interests of the shareholders. As these are likely to be the pursuit of stability and profitability, the interests of creditors are generally aligned with those of the shareholders.
However, when a company is in a difficult financial position, the interests of creditors become increasingly important: the question tackled by the Supreme Court was the point at which that shift occurred.
The court held that the ‘creditor duty’, which is also known as the ‘rule in West Mercia’ after the 1988 case of West Mercia Safetywear v Dodd, would apply where the company insolvency or administration is unavoidable. At that point, the interests of creditors take priority over those of shareholders and become “paramount”. But that duty did not arise while insolvency was only imminent or probable, because at this point the interests of shareholders and creditors may still be aligned.
The Supreme Court judgement effectively gives companies more time to trade through financial difficulties by pushing back the point at which the interests of creditors must be given priority by directors.
“As explained in the judgement, this appeal raised questions of considerable importance for company law, being the first opportunity for the Supreme Court to consider the existence, content and engagement of the so-called creditor duty,” said company law specialist, Miss Amy Cusworth of Oxley & Coward Solicitors LLP.
“But while the headline news is that this pushes back the point at which directors must focus foremost on the interests of creditors, the court emphasised that directors are under a duty to keep themselves well informed on the company’s affairs at every stage.
“This means challenging themselves over each decision they make when working through any financial difficulties and getting advice at the right time and each stage. There is no simple one-size-suits-all that informs the point at which the burden shifts. It will be down to individual circumstances and directors will need to demonstrate they are working to save a struggling company, not engaging in activities that could deepen the threat of insolvency where there is little chance of avoiding the inevitable.”
BTI 2014 LLC v Sequana SA and others [2022] UKSC 25
West Mercia Safetywear Ltd v Dodd ([1988] BCLC 250)
[This is not legal advice; it is intended to provide information of general interest about current legal issues].
In the UK, pupils and students are protected from being discriminated against by their schools, colleges and universities under the Equality Act 2010, but this doesn’t mean education is free from discrimination. It is important to be able to identify when discrimination is happening and know what to do to stop it. If not, it can have long-term effects on the impacted individual.
What is discrimination in education?
Discrimination in education can happen at various points in an individual’s life; it is when a person is treated unfairly because of who they are. In education, this can be detrimental to an individual, often a child, and can lead to their education being impacted long term, as well as their mental health.
In the UK, discrimination is unfair treatment against someone because of what the Equality Act 2010 outlines as ‘protected characteristics’. This unfair treatment cannot discriminate against someone at any point in their education, including admission, access to education and extra-curricular activities or even exclusions.
Protected characteristics
The Equality Act 2010 outlines nine protected characteristics that cannot be discriminated against, and in education, there is a duty placed on schools, higher and further education institutions not to discriminate based on these set characteristics. The nine protected characteristics outlined in the act are:
- Age
- Disability
- Race
- Sex
- Sexual orientation
- Religion or belief
- Gender reassignment
- Pregnancy and maternity
- Marriage and Civil Partnership
How can you take action against discrimination?
If you decide to take action against discrimination, it is important to know who to take this action against and how to do it. The body that provides you or your child’s education is to who the complaint should be directed to. Depending on the type of school attended, this will be the local authority or the school’s board. Similarly, colleges and universities will likely be run by private bodies rather than the local authority, and it is to that body to which you should complain.
Complaints procedures
Schools, universities and colleges will all have their own complaints procedure that should be accessible to you. Following this procedure should be your first formal step in tackling the discrimination, and if this fails to resolve the issue, you should look to the body in charge of providing the education, such as the local authority.
Court action
Going to court should always be a last resort, but sometimes it is inevitable. If you have tried to resolve the issue through all other open routes and they have failed to stop the discrimination, then you can claim against the responsible body.
It is important to note that this claim must be brought within six months of the discrimination taking place.
Fire and rehire – why employers need to watch out
For many years organisations have been using dismissal and re-engagement, often referred to as ‘fire and rehire’, as a method available to make a contractual change between the employer and employees. However, in February 2022, the High Court issued an injunction against Tesco, preventing them from operating this way.
The Tesco case – what happened?
In 2007, Tesco made operational changes. They relocated warehouses and staff working in the warehouses, with staff retaining pay. Tesco assured the employees that the retained pay would remain and could not be removed – it was to be a permanent clause within their contracts.
However, long term, Tesco did not view this as sustainable, and in 2021, employees who had retained pay featured in their contracts were offered a monetary incentive to encourage them to ditch the retained pay clause. Although this was offered to employees as optional, they were also all informed that contracts were going to be terminated if they did not agree. Employees who chose not to take the incentive were to have their contracts terminated by Tesco but were to receive an offer of re-engagement. Ultimately, Tesco sought to fire and rehire in order to remove the retained pay from the employees’ contracts.
In February, the High Court issued an injunction against Tesco to prevent this from happening, but now The Court of Appeal has overturned this decision, allowing Tesco to go ahead with its plan to fire and rehire.
What does this mean for businesses?
When the High Court offered its judgment in February, there was a lot of worry about what this would mean for businesses as the hire and rehire route was effectively outlawed. However, The Court of Appeal now going back on this view means that employers can fire and rehire employees without worrying to the same extent about legal repercussions, but this does not mean it should be a frequently used method.
What are the risks of fire and rehire?
Employees have a growing awareness of their rights, and although employers can utilise a fire and rehire process, it is unlikely to make them popular with their own employees or the general public. Now the precedent has been set, more claims can be brought against employers using this system, so it is always important to consider if the risks of litigation and bad publicity will be less than the benefits of fire and rehire will provide.
Divorce applications at ten-year high – does no-fault divorce make it easier?
On 6 April 2022, the Divorce, Dissolution and Separation Act (2020) came into force – a landmark reform introducing ‘no-fault divorce’ for couples ending their marriage. As a result of the new legislation, statistics released by the Ministry of Justice show divorce applications from April-June 2022 at a ten-year high and up 22% from the same quarter in 2021.
[LINK – https://www.gov.uk/government/statistics/family-court-statistics-quarterly-april-to-june-2022/family-court-statistics-quarterly-april-to-june-2022#divorce].
So, why were so many couples holding out to file for divorce until after 6 April?
What is no-fault divorce?
No-fault divorce allows couples to divorce without the need to attribute blame to any one party. This is intended to make the process less acrimonious and enable people to focus on other practical and emotional aspects of their separation, including reducing conflict for children.
How does no-fault divorce make the process easier for separating couples?
The Divorce, Dissolution and Separation Act 2020 brought in several long-awaited changes that make it easier for couples to end their marriage or civil partnership and might explain the recent spike in divorce applications since the new rules came into force.
Grounds for divorce
Previously, divorcing couples had to show that their marriage had irretrievably broken down by establishing one of the ‘five grounds’ of divorce. These were adultery, unreasonable behaviour, desertion, living apart for at least two years with consent and living apart for at least five years without consent.
As the concept of fault has been removed through the reforms, the requirement of showing the marriage has irretrievably broken down is now gone, and couples no longer have to cite one of the five grounds for divorce.
A divorce can no longer be contested
Under the old rules, one party could contest the divorce if they did not agree with the grounds. This could either delay or potentially prevent the divorce from being successful – thus forcing one party to stay married to the other against their wishes.
One of the most significant changes that have been made is that the divorce petition can no longer be contested, except for reasons of jurisdiction.
Joint applications
Under the new system, it is no longer required that one single party initiate divorce proceedings and a joint application can now be made by a couple.
Updated terminology in the divorce process
The terms and wording used previously during the divorce process have now been modernised. The person applying for the divorce is now called the applicant rather than the petitioner. The decree nisi is now a conditional order, and the decree absolute is called the final order.
The importance of legal advice
Despite these new reforms arguably making the divorce process easier, it is still very important to obtain professional legal advice from a family law solicitor to ensure things such as financial matters are dealt with properly at the time of divorce.
How do I move out of shared property?
As the start of a new term at university or college fast approaches, you might be swept up in the excitement of moving into your new rented property. However, whether it’s halls or a shared house, you will be entering into a legal contract, and ignoring the terms of your contract might cause you problems further down the line, especially when you want to move out.
While, at the moment, you might not see any reason you would want to move out before the end of the contract, things can change. In this article, we look at how to move out of shared property.
What is an HMO?
An HMO (house in multiple occupation) is a property shared by three or more unrelated people (not part of the same household), sharing facilities in the property such as bathrooms, kitchens and living areas. Most student houses will be HMOs, and landlords must follow extra procedures if this is the case.
If I move out of the property, will the agreement end?
No, you cannot simply move out of the property as you have signed a binding legal agreement; therefore, moving out will not bring this to an end, and you will still be liable to pay rent. However, you may have a break clause included in your agreement.
Check your contract for a break clause
If you have a break clause in your tenancy agreement, this can let you leave early before your tenancy ends.
However, there is no standard format for a break clause, and many are very specific, only being able to be used on or after a specified date. You should seek advice to see if you can use the break clause in your agreement to end your tenancy early. It may not also be called a ‘break clause’, so you should look for anything that refers to giving notice or ending the tenancy early.
If you are just moving into your property and haven’t yet signed your contract, you could request a break clause to be included to allow early termination of the tenancy.
Can I be released from my tenancy agreement?
It is very unlikely you will be released from your contract with a private tenancy. If you live in halls, many universities will release you from your housing contract if you leave university. However, most students do not stay in halls.
It is always worth speaking to your landlord about a possible release; you may have compelling grounds to do so that might impact your ability to pay rent, such as on compassionate grounds.
Can I find someone else to replace me?
If your landlord does not release you from your agreement, they may request you find a replacement for your contract. In this circumstance, a new contract will be signed by your replacement, your contract will end, and your deposit should be refunded.
Dyslexia Awareness Week 2022 – What reasonable adjustments should your employer be making?
World Dyslexia Awareness Week 2022 will run from the 3rd to the 9th October. This annual event aims to raise awareness of dyslexia amongst the general public, educational institutions, and employers.
If you are an employee with dyslexia, it is important you know what support should be available to you. In this article, we look at an employer’s legal duty to make reasonable adjustments and what kind of adjustments should be made to enable employees with dyslexia to carry out their work.
Duty to make reasonable adjustments
Under the Equality Act 2010, employers have a legal responsibility to make reasonable adjustments in the workplace for those with disabilities. Dyslexia falls under the scope of the legislation and is recognised as a disability. This is because dyslexic employees can be substantially disadvantaged in the workplace compared to those without the condition.
However, despite dyslexia being the most common disability present in a workplace, the right adjustments are often not made, and the condition is not clearly understood or overlooked. Therefore, it is important that employers understand their legal responsibility and take this seriously, so their employees can work to the best of their ability, with dyslexia or without.
What kind of reasonable adjustments should your employer make?
The adjustments that must be made will depend on both the employee and the nature of their role. For the most part, many adjustments can be made with little cost or hassle to you or your employer, but they will make a huge difference to your work life and your ability to do your job.
Writing problems
Your employer should consider implementing other communication methods rather than writing, allowing more time for required written documents. They may also invest in quality spell checker programmes to assist with writing.
Reading problems
If you struggle with reading, there are some simple adjustments your employer could make. A simple adjustment is to provide instructions, feedback or information verbally rather than written. They could also install a text-to-speech programme or screen reading software or adjust the colour of your screen to make it easier for you to read.
Verbal communication
If you have issues with verbal communication, there are, again, simple steps your employer should take. For example, communicating in a quiet location free from any distractions or allowing you time to take notes for them to check before going off to work on any tasks as directed by your employer.
What if my employer does not provide me with the right support?
If your employer does not put reasonable adjustments in place, you might be able to get help from Access to Work. Access to Work can help you get the support needed to stay in work. With this scheme, it is important to note that If you work remotely, even partly, this will still count as your workplace. You can find out more about applying for an Access to Work grant here [LINK TO https://www.gov.uk/access-to-work/apply]
When embellishing your CV may be illegal
Job seekers wishing to present themselves in a good light by inflating their experience and qualifications may get the job today, but the deception could cost them their future career and even their freedom.
That’s the warning following a ruling in the Supreme Court after an NHS manager claimed what were called ‘a staggering series of lies’ on his CV, which enabled him to hold a series of senior posts over a period of ten years.
And with the fraud prevention community Cifas reporting that as many as one in 12 CVs contain fraudulent information, rising to as many as one in six of those aged 24 and under, the problem is high on the HR agenda.
The fake claims made by Jon Andrewes, 63, included calling himself ‘Dr’, saying he had a PhD, and claiming he had earned degrees from three universities, when his highest qualification was a Higher Education Certificate in Social Work. He had spent most of his career as a probation officer, customs officer or youth worker, but falsely described experience that equipped him to apply for senior posts. This opened the door for him to become chief executive of St Margaret’s Hospice in Taunton, and later chairman of the Torbay Care Trust and of the Royal Cornwall Hospitals Trust (RCHT).
The fraud was discovered by health service investigators looking into his history when Andrewes wished to retire early on health grounds. He admitted to deception and fraud and was jailed for two years in 2017. He was later ordered to repay £97,737.24 of his earnings, under the Proceeds of Crime Act.
When the court calculated how much he should repay, they rejected his claim that he was entitled to keep the pay because he had worked hard and effectively, regardless of how he came to get the jobs. Andrewes appealed against the order, which required him to pay back using his share in a house, a boat, premium bonds and to cash in a pension plan, but the Supreme Court upheld the ruling when they heard the appeal.
“The court heard that Mr Andrewes had made ‘significant progress’ at the hospice and had ‘not actively done any damage’ during his time in the roles, but this did not help him in avoiding a prison sentence or the amount to be reimbursed,” explained Miss Amy Cusworth, employment lawyer with Oxley & Coward Solicitors LLP.
“The potential damage to employers cannot be under-estimated. If someone lies their way into a position, where they do not have the professional or technical knowledge, or the necessary experience, an organisation is wide open to the negative impact of that knowledge gap.
“In some cases, it could even be life-threatening, such as those faking medical or airline pilot qualifications. That’s why it’s essential to have clear procedures in place to check experience and qualifications, rather than relying on a CV, or indeed the social media profile created by an individual, such as on the LinkedIn platform.”
Miss Cusworth added: “The research showing younger people are more likely to commit this sort of fraud is a real worry. They may find themselves in a tough jobs market and think they need to give themselves a short-term advantage, but a false boost has the potential to damage their long-term career path.
“There may be a sense of it being simply a ‘digital enhancement’, like applying a filter to an image before uploading to Instagram, but this is a very different ballgame with very serious consequences.”
The appeal in the Andrewes case focused on the confiscation regime laid down by the Proceeds of Crime Act 2002, and whether there should be a confiscation order to strip the fraudster of their earnings. The Supreme Court ruling sets out how salary payments may be calculated and reclaimed in CV fraud cases, saying that where there has been full value for the earnings received it will normally be disproportionate to confiscate all the net earnings made. Instead, the calculation can be based on the percentage difference between the initial salary in the new job obtained by fraud and the salary of their prior job. The calculation should also take account of the potential amount that is recoverable.
The amount by which Andrewes had benefited was calculated at £643,000 but based on his available assets, the maximum recoverable was identified as being £97,737.24.
R v Andrewes (Respondent) [2022] UKSC 24 On appeal from [2020] EWCA Crim 1055
[This is not legal advice; it is intended to provide information of general interest about current legal issues]
Final destination on the route to full tipping
Hospitality workers must receive all gratuities and service charges without deductions in future
Hospitality and other service sector businesses need to gear up for gratuity changes, with new legislation designed to tie up loose strings over tipping protocols, to ensure all tips and service charges are handed over to staff.
The long-awaited legislation, drawing on recommendations from the Government’s Good Work Plan proposals, will make it unlawful for employers to withhold tips and service charges from staff, and give workers new rights to see an employer’s tipping record. The new rules will come into force after winning backing from MPs and a new statutory code of practice is set to be developed, to provide businesses and staff with advice on how tips should be distributed.
A wider employment bill was intended to incorporate these changes, but when the bill was subject to ongoing delays, MP Dean Russell put forward a private members’ bill to tackle the issue. The government, which formally backed the Employment (Allocation of Tips) Bill at its second reading in parliament, said it should benefit more than 2 million workers.
The new rules are designed to overcome situations where employers make deductions from tips or withhold service charges, with many so-called ‘administration’ charges levied where tips are given through card payments.
“This change is finally in sight and employers operating a business with gratuities and tipping involved should get on board with matching up to the new rules,” said employment law expert Miss Amy Cusworth of Rotherham-based Solicitors Oxley & Coward Solicitors LLP.
Whether tips are paid through a set percentage service charge or added at the discretion of the customer in cash or card payments, historically there has been no control over how tipping in the workplace is managed, just a voluntary code of practice which encourages employers to be transparent.
The only restriction there has been on employers is that tips cannot count towards the national minimum wage (NMW). The NMW Regulations apply to any eligible worker, whether they are paid by the hour or on some other basis, and calculations must be made to check if the equivalent hourly rate is at the right amount and any gratuities paid at work must be on top of the NMW.
Also, some restaurants may have what is known as a tronc scheme. This is effectively a self-administered scheme for staff, with a troncmaster appointed to distribute tips between staff. The employer is not able to influence the operation of the scheme or how tips are shared.
She added: “While this legislation may be controversial to some employers, this is now the final call for ensuring staff are receiving their full fair share of tips received. The move towards cashless transactions has been a further barrier to workers who want to see how much has been given in tips and this will help tackle that issue with greater transparency in future.
“One aspect that employers need to face up to is the handling of tips when customers add it on to their card payment. In the past, many businesses have made a deduction for the related transaction fees applied on card payments, before passing the cash on to workers, but this will no longer be permitted. In future, the whole sum must be passed on.”
[This is not legal advice; it is intended to provide information of general interest about current legal issues].
Taking positive action in tricky times
When the chips are down and divorce is the only card left to play, tax planning is unlikely to be top of the list for many couples. But failing to transfer assets at the right time may result in unexpected charges for capital gains tax, eating into much-needed capital.
When a couple first separate, transfers and disposals made during the current tax year can be on a ‘no gain, no loss’ basis. But matters become complex and could involve tax charges on the spouse or civil partner who is transferring the asset, once outside that first tax year. And the likelihood of this is rising with financial matters becoming increasingly complex, and many divorces taking longer to complete.
Recognising that couples going through the trauma of separation do not consider the tax implications and timing of asset transfers, the Office of Tax Simplification has recommended that the tax rules be updated to reflect a fairer and more modern approach to separation and divorce.
In response, the Government is proposing to introduce legislation to change the rules for disposals that take place on or after 6 April 2023. The proposed changes would extend the window of ‘no gain, no loss’ transfers and disposals to three tax years after the end of the tax year of separation, or where there is a formal court order with no time limit.
Said Sarah Scott, family lawyer with Rotherham-based Oxley & Coward Solicitors LLP : “Even with the best intentions and swift agreement between a couple, it can be a real challenge to conclude financial matters before an April deadline, particularly for those who separate later in the year. Being hit with unwelcome, and possibly unexpected, tax bills can turn a difficult situation into a full-blown crisis, when tax may need to be paid but no cash has been realised to do so.
“Good planning can help avoid such problems, but this proposal would provide much needed flexibility. It won’t remove the need for specialist legal and tax advice, and timing will remain important, but it would be a very positive change.”
They added: “In the meantime, as family lawyers we will be keeping a close eye on the progress of these proposed reforms, as it may be a good idea to intentionally delay some asset transfers until the proposed new rules take effect.”
Provisions within the Taxation of Chargeable Gains Act 1992 cover the tax position when spouses live together, and when they dispose of assets on divorce. And while these provide for some relief from capital gains tax, including on the primary marital home, the circumstances are limited and can be inflexible in the reality of current-day divorce.
One example is in the different approaches to dealing with jointly-owned property. With house prices continuing to rise, more couples are agreeing to retain the family home until children are adult, whether ‘bird nesting’ – where shared childcare sees parents move between homes, rather than the children – or where a couple agree they will delay selling up and dividing the proceeds until the children leave home.
The proposals would help in this situation, provided the arrangements are in accordance with a court-approved agreement as an ex-spouse or civil partner would be entitled to receive the same tax treatment on any proceeds in the future, as they would have received if the property had been sold or transferred at the time of the separation.
[This is not legal advice; it is intended to provide information of general interest about current legal issues].
School’s out as holiday pay ruling lands
Holiday pay for those who work only part of the year and have no contractually set hours should be calculated on the basis of average earnings, the Supreme Court has confirmed.
In a judgement that is likely to mean higher holiday pay payments for many in the education sector, with the possibility of claims for unlawful deductions where pro-rata calculations have been made in the past, the Supreme Court dismissed an appeal over the ruling in The Harper Trust v Brazel.
The Supreme Court reinforced that holiday pay for part-year workers should be calculated using the averaging method on earnings over the 52-week period prior to taking leave, rejecting Harper Trust’s argument that a part-year worker’s leave be calculated on a pro-rata basis to account for weeks not worked.
The case was brought by part-time music teacher Lesley Brazel who worked term-time at a school on a permanent contract of employment but was paid only for hours worked. These varied from term to term, depending on the number of children taking music tuition. Under the terms of her contract she was entitled to holiday of 5.6 weeks – in line with the statutory entitlement – and was required to take that holiday out of term time, with her holiday pay calculated on a pro rata basis.
But the Court of Appeal ruling, upheld by the Supreme Court, said there was no reason to pro-rata entitlement as the Working Time Regulations state that holiday pay should be calculated in accordance with the week’s pay provisions of the Employment Rights Act 1996. Where a worker does not have normal working hours, this is taken to be the worker’s average weekly pay in the 52 weeks before the leave starts, excluding any weeks in which no remuneration was payable.
Amendments to the Working Time Regulations introduced in April 2020 extended the reference period for calculating the average week’s pay due for statutory leave to 52 weeks from the 12 weeks which was in force at the time of the original claim by music teacher Lesley Brazel.
“Holiday pay continues to be a minefield. Many employers have used a pro-rata calculation of annual pay to work out holiday pay for part-year workers who do not have normal working hours, and while some may have adopted the averaging method following the Court of Appeal’s judgement, this further ruling by the Supreme Court may result in a flurry of historic claims“, said employment law expert Miss Amy Cusworth of Rotherham town solicitors Oxley & Coward Solicitors LLP.
“A full review of holiday pay is a good idea, to be sure you are keeping up to date on this front. This will help get it right for the future while also identifying any retrospective issues which could be subject to a claim for earlier unlawful deductions.”
[This is not legal advice; it is intended to provide information of general interest about current legal issues].
Garden predators are taking root in the courts, as householders take action to fight off plant invaders that can be highly destructive and undermine property values.
One of the most common reasons for garden-related legal action is when Japanese knotweed has taken root. This highly invasive, aggressive and fast-growing plant can cause structural damage to building structures, with roots that can spread seven meters.
Even the smallest amount of root material is enough to allow new growth, meaning removal usually involves costly specialist waste disposal. Classified as hazardous waste, landowners can be fined up to £5,000 or sent to prison for two years if they allow contaminated soil or plant material from Japanese knotweed to spread in the wild.
Property values may be downgraded significantly where knotweed is present, and a landmark ruling in 2017 established that landowners are responsible if they do not prevent the plant from spreading from their land to adjoining properties. Here, a group of homeowners in South Wales took action against Network Rail after Japanese knotweed grew into their garden from adjoining railway sidings. In spite of there being no physical damage, the court ruled in their favour saying that the presence of Japanese knotweed was sufficient reason for compensation, as it had the potential to seriously affect the market value of a property. The judgement was later upheld by the Court of Appeal.
A further case in 2019 saw a £50,000 compensation pay-out being made after a surveyor failed to tell a buyer about knotweed at a £1.2 million flat.
And in one of the latest cases to reach the courts, the owners of a property in north west London are claiming £250,000 in compensation from their neighbours, saying that a failure to deal with knotweed has devalued their house, which would otherwise now be worth £1.67 million.
Typically, mortgage lenders have restricted their lending on properties that are affected and homeowners have found themselves having difficulty in selling, or finding the value of property significantly reduced.
But there may be a shift in attitude in future. For this year the Royal Institute of Chartered Surveyors (RICS) has issued new guidance for valuing property where knotweed is present. The RICS guidance for its surveyor members on how to assess the impact of any infestation suggests that previous parameters were overly strict and marks the end of the so-called “seven metre rule”. It also marks a shift in stance on managing any infestation, from permanent removal to achieve eradication towards management of the problem through herbicides.
Conveyancing expert Dawn Cherry of Oxley & Coward Solicitors LLP commented: “While there may be a shift in future, until we see clear evidence of a greater acceptance of knotweed from surveyors and lenders, the message has to be to keep on top of any infestation, whether on your own property or in a neighbouring garden.
“If it’s on your land, while there is no legal requirement to remove Japanese knotweed unless it’s causing a nuisance to neighbours, inaction is likely to result in a bigger problem in future.
“Where you know it to be present on adjoining land, you should get a request on record for the neighbour or landowner to ensure it does not spread over the boundary. And once there is evidence of it crossing the boundary to your property, you may have grounds for a nuisance claim, and to ask for an eradication programme and guarantees from a specialist company, as well as seeking compensation.”
She added: “Your home is usually your biggest asset, so it’s important to protect it – whether you’re planning on moving in the near future or not. Certainly, when a property is being sold, part of the conveyancing process includes a comprehensive questionnaire for the owner, which includes asking whether Japanese knotweed has ever been found on the property.”
[This is not legal advice; it is intended to provide information of general interest about current legal issues].
Proposed new legislation is latest in a fast-changing landscape for private rented sector
By Amy Cusworth, property law specialist with Oxley & Coward Solicitors LLP
Residential landlords already struggling to keep up with legislation and guidelines, including the tenant protections extended by the government during the pandemic, may feel they have been experiencing constant waves of change so far – from fast-diminishing returns following cuts in tax relief through to the complexities of right to rent checks. But now, gathering power out to sea, lies a potential tsunami.
And while it includes a raft of legislation designed to curb poor practices and unscrupulous landlords, it will, nonetheless, impact the whole sector, with those ‘accidental’ landlords and small-scale property owners likely to be most affected, potentially leading to a significant sell off in the sector.
The Government’s long-awaited White Paper – A fairer private rented sector – finally arrived in June. It sets out structural changes, the biggest for renters in a generation according to the press statement from the Department for Levelling Up, Housing and Communities.
The aim is to improve conditions and rights for those in all housing. As well as changes in the law for privately rented property through the Renters Reform Bill, the Social Housing Regulation Bill will make all registered social housing providers subject to a tough new regulatory regime, with rigorous inspections and stronger powers to tackle failings by social housing landlords.
Re-shaping the renting landscape
For private landlords, the headline takeaway is that the sector will be subject to the Decent Homes Standard for the first time, giving all renters the legal right to a safe and warm home, and it will ban Section 21 ‘no fault’ evictions.
This latter change is one of the most fiercely debated for landlords. The ambition of the legislation, abolishing section 21 of the Housing Act 1988 and re-framing the grounds on which a landlord can regain possession under section 8 of the Act, is intended to protect tenants from unscrupulous or unpredictable landlords.
Alongside, the Government plans to introduce a simpler tenancy structure which it says will be more secure for tenants, yet more flexible for both parties. This will see a shift from assured tenancies and assured shorthold tenancies onto a single system of periodic tenancies for all privately rented accommodation. The effect of this change will be that a tenancy will only end if the tenant chooses to do so, and gives two months’ notice to the landlord, or if the landlord has a valid ground for possession.
As landlords will only be able to evict a tenant in reasonable circumstances, the Government is making changes which it says will strengthen the position for landlords with legitimate grounds for taking back their property. This includes making it easier for them to evict tenants who are wilfully not paying rent, or who are repeatedly engaging in anti-social behaviour, and with scope to end a tenancy when a property is intended to be sold, or for the landlord’s own use.
There are also plans to create a passport form of deposit, to overcome the need to raise second deposits when moving home. A topic which has also been the source of much discussion among landlords, who see problems in releasing deposits before they may have had full opportunity to check for tenant damages.
Also, rent increases will be restricted to once annually, with an easier route for tenants to challenge increases through the First Tier Tribunal, and rent review clauses abolished altogether.
A new Ombudsman service will be established to provide a faster, less adversarial dispute resolution service instead of going to court, and all private landlords will have to participate. Other mediation and alternative dispute resolution procedures will be introduced to enable landlords and tenants to work together to reduce the risk of issues escalating.
And a new Property Portal will give landlords, tenants and local councils a one-stop route to demonstrate and check compliance and other information, the intention being that tenants can check on landlords before taking a property and for local councils to have the necessary data to tackle criminal landlords. There are also plans to integrate the existing functionality of the Database of Rogue Landlords into the planned Property Portal, to make these publicly visible.
It will become illegal for landlords or their agents to apply a blanket ban on renting to families with children or those receiving state benefits. In future, this may be extended to include other groups such as those leaving prison.
Landlords will have to demonstrate good reasons for refusing tenant requests to keep a pet in their property, although landlords will be able to require an insurance indemnity from the tenant to cover the cost of any potential damage by the pet.
Against this backdrop of increasing complexity and lower yields, many private landlords, particularly those who may have fallen into the position accidentally – following a career move or perhaps inheriting a property – may be considering whether to divest and move out of renting altogether, or to move into short term, holiday letting.
As ever, there are pros and cons, and it’s worth considering some of the other potential changes being considered by Government.
Weighing up the holiday let market
The rapid growth of very short term, hotel-style letting on platforms such as Airbnb and Booking.com has been blamed for reduced levels of longer-term rental stock. There’s an obvious attraction with higher nightly rates, payment in advance and no worries about long term problem tenants.
However, the market is gradually being pulled into shape by greater regulation. The Government has said it will review the impact of holiday lets in the UK, as part of moves to address the shortage of housing for those living in popular tourist locations. This will also look at the impact of holiday let rentals on anti-social behaviour, whether from stag nights or pop-up party events. The platforms are themselves taking action, with Airbnb banning parties on all rentals, but local authorities are likely to take action too.
This is likely to add to the national rules and regulations, from tax to health & safety, and local bylaws that must be complied with, such as the maximum 90 days per year rule that applies on short term rentals in London.
Under the Deregulation Act 2015, homeowners in London can rent their homes to guests on a short-term basis for up to 90 days in one calendar year, without having to apply for planning permission to change their property use class from a C3 (Dwelling House) to C1 (Hotels, Boarding Houses, Guest Houses). The 90 days can be a series of one-off nightly or weekly lettings or a single block of time, but once the quota has been used up, if the homeowner goes on to exceed the 90-day rule without permission from their Council, then they can be subject to penalties of up to £20,000 for each unlawful letting.
The Government is also taking action to tackle the issue of second and empty homes in some areas by empowering councils to charge higher rates of council tax, which could see rates double, and in Wales it could even quadruple. There are also reports that regional mayors may be given the power to ban properties from being used as short-term lets at all.
Taking a tax break – if talk turns into law
Other things to consider are the cost of selling and getting out of the rental market, including capital gains tax.
When there is a gain on the sale of a property that is not a principal private residence, the landlord may find themselves with a capital gains tax bill if it exceeds their annual allowance, with tax on the gain payable at a rate of 18% for basic rate taxpayers and 28% for higher rate taxpayers.
Recent reports in a national newspaper suggest that the Government is considering action to shrink the buy to let market, including offering tax breaks for those who are accidental landlords, perhaps where they have inherited a second property, to encourage sales and increase the housing stock.
Whatever the weather
In this fast-moving landscape, taking regular guidance and keeping up to date with access to relevant knowledge is essential. Whether you are an accidental landlord, a single property landlord or hold a major property portfolio, the same rules apply and there is no exemption for lack of knowledge.
As the nursery rhyme goes:
We’ll weather the weather
Whatever the weather,
Whether we like it or not.
Getting clear advice and checking the legal and financial implications as the sector continues to deal with these latest changes may help avoid the situation becoming a tsunami for you, keeping it no more than a summer storm!
[This is not legal advice; it is intended to provide information of general interest about current legal issues]
In June, the Society for Trust and Estate Practitioners (STEP) launched a new “Protect your Digital Memories” campaign. The campaign aims to increase awareness and encourage people to protect their digital memories. STEP is calling for both the government and digital service providers to do more to help people put plans in place and also provide support to families and loved ones wanting to gain access to a deceased’s account. But why is protecting your digital assets and memories so important?
In this article, we look at why it is worthwhile to put plans in place that protect your digital memories for your loved ones when you pass away and how you can do this.
Why should I think about protecting my digital memories?
In 2022, so much of our lives and memories are digitally stored in photos, videos, social media accounts, emails, and cloud storage – to name only a few. But, just like physical and monetary assets, digital memories can be as important to people.
In what circumstances might my loved ones need to access my digital accounts?
There are a number of circumstances where your family and loved ones may need to access your digital accounts should you pass away or lose capacity, including:
- To access things that hold sentimental value to you or your ones
- To protect your privacy
- Take care and safeguard any financial property you might have.
Unfortunately, many people are unaware of what will happen to their digital memories and assets should they become incapacitated or pass away. Without adequate planning, these could be lost forever or create further problems down the line.
How to protect your digital memories
There are several steps that you can take that are fairly simple but could prove extremely helpful to your loved ones further down the line.
Update your legacy settings
Many social media and internet platforms that we use daily, such as Apple, Google and Facebook, have tools allowing you to decide how your account can be accessed when you are no longer here or can do so yourself.
If you do not nominate a legacy contact, accounts can be very difficult, potentially impossible, to access. Updating your legacy settings should only take a few minutes, but doing this will give you the peace of mind that these accounts can still be accessed.
Communicate with your loved ones
While no one wants to think about a time when you are no longer here or cannot make decisions for yourself, it is important to talk to family and friends about your wishes. Having these conversations now can save a lot of time and stress for your loved ones in the future. Out of these discussions, you may even start sharing things with them now, such as photos and videos.
Use cloud storage
Cloud-storage makes it easy to store and back up your digital files, including important information and more sentimental items. Keeping everything in the cloud and ensuring your loved ones can gain access to this can make things a lot easier when you are no longer around.
Seek legal advice
If you have any concerns about what might happen to your digital estate, you can also contact a legal adviser to advise you on how to plan effectively.
Earlier this month, the Prime Minister announced an extension to the Right to Buy scheme in an attempt to make home ownership possible for millions more in the UK. Right to Buy is a government scheme that allows most council and now housing association tenants in England to buy their homes at a discount.
Owning your own home can be an investment for your future and a very valuable asset for your family, so is the scheme worth considering as a route to home ownership? In this article, we answer some frequently asked questions by looking at how the scheme works and who is eligible.
What is the Right to Buy Scheme?
Since the 1980s, the Right to Buy scheme has allowed over two million people to own their own homes. The scheme enables council and housing association tenants to buy their homes and receive a discount of up to £87,200 or £116,200 in London.
Who can apply to the scheme?
You can apply for the scheme if your council or housing association home if:
- The property is your only or main home
- It is self-contained
- You have been a public sector tenant for three years (this does not have to be in a row)
- You are a secure tenant
Can I make a joint application?
Yes, you can make a joint application with someone who shares your tenancy or up to three family members who have lived with you for the last 12 months.
How has the scheme been extended?
The Right to Buy scheme will extend to tenants renting homes from housing associations. The extension of the scheme could benefit up to 2.5 million tenants, providing them with an opportunity to buy their homes.
Do I need a solicitor to complete my purchase?
Yes, you will need a solicitor or a licenced conveyancer to carry out the legal aspects of your purchase, including land registry fees, deeds and searches.
Can you sell your property after using the Right to Buy scheme to purchase it?
If you buy your home using the Right to Buy scheme, you can sell; however, if you sell within the first five years of ownership, you will likely have to pay back some or potentially all of the discount you received at the time of purchase. The amount you pay back will also depend on the value of your home when you sell.
Is the scheme right for me?
Buying your own home is never a decision to be taken lightly, whether using the scheme or otherwise. When you buy your own home, you take on costs that you might not necessarily be liable for as a tenant, including:
- Maintenance of the house and repairs – your landlord is no longer responsible for any repairs or maintenance, and you will need to pay for these yourself
- Home insurance – while you might already have contents insurance if you are renting, when you are the owner, you will also need buildings insurance
- Income protection – this is something you may also want to consider in the event that you can no longer pay your mortgage
- Service charges – these are most common if you are buying a flat for the maintenance of the building and upkeep of surrounding areas
Before making any decisions, you should seek professional advice to determine if the scheme and home ownership is the right option for you.
Should children be involved in the mediation process?
Going through divorce or separation is challenging, particularly if you have children. If your children are old enough, they may also express worry, concern, or preferences about what they would like to happen. However, should your children become formally involved in the process? This article looks at child-inclusive mediation and whether it might be right for your family.
What is child inclusive family mediation?
Child-inclusive mediation allows children to be part of the mediation process in a structured and practical way. Typically, couples use mediation to resolve any issues or disputes that arise throughout the process of divorce or separation, and through child-inclusive mediation, your children can have their say too.
Children often wish to have their voice heard on divorce and separation matters, as it will have a huge impact on their everyday life. They may have opinions about who they would like to live with, how much time they will spend with each parent and even how much contact they would like with their wider family, such as grandparents. You can choose to listen to your child’s opinions using child-inclusive mediation.
When should you include your child in the mediation process?
Parents want to involve their child or children in the mediation process to provide them with a safe space to discuss their feelings and opinions. It can be very stressful for children to talk about living arrangements and other matters, as they don’t want to disappoint either of their parents. In many cases, children simply tell each parent what they want to hear, which can cause greater conflict.
A mediator will help your child process their views and form clear opinions about what they would like to happen in the future. Child-inclusive mediation can also lead to more child-focused outcomes and help parents understand how to deal with their child’s opinions and emotions.
Will mediation be stressful for your child?
In most cases, being involved in the mediation process can actually improve the wellbeing of your child at a very difficult time. Children often feel frustrated and left out during the divorce or separation process. Child-inclusive mediation can make them feel like their feelings and opinions are being properly considered. Of course, if your child does not want to be involved in the mediation process, you should not force them to do so.
When is child-inclusive mediation not appropriate?
Child-inclusive mediation will not be suitable in most cases where children are under 10 years of age. If your child is over 10, the mediator may also still recommend that your child does not take part because they may lack the ability to process their emotions or understand what is going on and how it will affect them. Where you, as parents or the mediator, feel participation in mediation would be distressing for your child, it would be best to keep them out of the mediation process.
Navigating the gig economy and the choppy channel across to franchising
Businesses looking to expand may consider a franchise model as the solution to future growth without the demands of capital investment. But getting franchising terms right is increasingly vital against the backdrop of the gig economy, with challenges as to whether individuals are truly self-employed contractors or could be classed as workers or employees and due to receive associated in-service benefits.
Franchising is a long-standing business model, with well-known examples such as fast-food outlets McDonald’s, KFC or Subway, through hotels, estate agents and cleaning companies to fitness centres. It allows the original business, as franchisor, to grant a franchisee the rights to replicate the business in new territory and to trade under a brand’s well-established name. The franchisee generally pays a fee to buy the rights in the first place, with a continuing commitment of fees or commissions to the franchisor.
Buying the franchise rights and getting the territory off the ground may involve creating a team, setting up premises and finding your own customers through direct marketing, but in the case of courier delivery service DPD, their franchise model allows self-employed owner-driver franchisees (ODFs) to act as delivery agents by tapping into the existing customer base and operational infrastructure of the nationwide business.
As part of the DPD franchise agreement, ODFs are required to have any substitute drivers approved by the company before handing over any responsibilities. In the case of Stojsavljevic and another v DPD Group UK Ltd this process was challenged, with ODFs arguing that it undermined any self-employed status, making them workers or employees of DPD. They said the reality of the franchise agreement was that they were contracted as individual drivers, solely responsible for undertaking the services.
But an employment tribunal ruled against the drivers, a decision later upheld by the Employment Appeal Tribunal (EAT), saying that a key element of worker status is that an individual personally undertakes to perform the work or services themselves. In the case of DPD franchisees, there was no restriction on supplying a substitute driver, only that the company had to be satisfied that the substitutes met minimum requirements.
The case reflects shifts in the broader economy towards so-called ‘gig’ work – short term work commitments or freelance contracts, typically paid on a per job basis – and the associated challenges around whether those fulfilling the jobs are self-employed or are workers or employees, with rights such as holiday and sickness pay.
Notable cases in the UK include successful action by drivers seeking worker status and rights from Uber, Deliveroo and Addison Lee. As a result, many such companies are reportedly considering franchise programmes as an alternative.
“Franchising may be seen as a get-out of jail card for this sector, but any employment tribunal will take a detailed look at both the clauses that constitute the agreement and how the relationship operates in practice,” explained company law specialist Miss Amy Cusworth of Rotherham-based solicitors Oxley & Coward Solicitors LLP.
“And it’s not just about substitution rights, as in the DPD case, as recent cases have focused on aspects such as the ability to determine pricing, the degree of integration into the franchisor business, and whether franchisees are subject to centralised policies or terms.”
(1) Mr M Stojsavljevic (2) Mr T Turner v DPD Group UK Ltd: EA-2019-000259-JOJ (previously UKEAT0118/20/JOJ)
[This is not legal advice; it is intended to provide information of general interest about current legal issues].
Stamp duty changes ahead for multiple and mixed-use purchases
Property buyers looking to pay reduced rates of stamp duty when buying multiple residential properties or claiming mixed residential and non-residential use can expect a tightening of the rules following a consultation by HMRC.
Stamp Duty Land Tax (SDLT) is payable in England on residential property transactions where the market value is more than £125,000, with a tiered scale related to the purchase price, and with different rules if you’re a first time buyer, or buying an additional home or a buy-to-let, through a company or when resident overseas. Non-residential property transactions are subject to different rates, which are presently lower than residential rates.
The consultation by HMRC has put the spotlight on how tax is calculated in two key areas: transactions using the Multiple Dwelling Relief (MDR) rules and those involving mixed-use purchases of both residential and non-residential property.
Under the present rules, MDR can be claimed when at least two dwellings are purchased in a single transaction, or as part of a series of linked transactions between the same vendor and purchaser. This allows the rate of SDLT to be calculated based on the average value of each dwelling, calculated individually and added together, rather than on their combined value.
For example, rather than calculating stamp duty on a single transaction of three properties at a total cost of £1.5 million, the tax could be calculated on three individual properties valued at £500,000 each. This can enable significant savings as stamp duty rates are tiered according to property value.
Savings can also be made when claiming for mixed-use purchases, which are subject to SDLT at lower non-residential rates, even where the amount of non-residential land in the purchase is very small. As HMRC highlights, mixed-property purchases can range from a country house with some land let for grazing through fast food shops with flats above, pubs and B&Bs, to large-scale city centre developments comprising ground floor retail outlets with floors of flats above.
Because mixed-property purchases are classed as non-residential, as well as benefiting from the lower non-residential rate of SDLT, purchasers can avoid the surcharges due when an individual already owns residential property, or is currently living overseas.
Also, mixed-property purchases can be combined with MDR, while still qualifying as being non-residential, unlike multiple dwelling claims involving only residential property, which would be calculated to include any surcharges payable by existing residential property owners or non-UK residents.
Purchases of six or more dwellings in a single transaction are taxed as purchases of non-residential property.
For the purposes of SDLT, there is a definition of what is meant by a ‘dwelling’ and in deciding if it qualifies HMRC will use a number of indicators, such as whether there is a separate council tax bill and energy supply, or a lockable front door, as well as the facilities needed to live independently, such as a toilet or washing facilities.
Said conveyancing expert Miss Dawn Cherry of Rotherham town solicitors Oxley & Coward Solicitors LLP: “Change is undoubtedly coming, and there may be a motivation to move on with any purchases where you may be able to claim these reliefs.
“When stamp duty was introduced, the tax charges on residential and non-residential property were similar so there was no significant tax advantage, but now there is a big difference once property values are over £1m, or where higher rate additional dwelling rates apply.”
They added: “However, this is a complicated area and it’s worth getting specialist professional advice on the topic. Mixed-use purchases and multiple dwellings relief is not automatic and must be claimed through a land transaction return and non-specialist conveyancers may not be aware of the potential to make a claim, or what constitutes a legitimate claim and HMRC will push back on anything that is misrepresented.”
Some examples of non-residential usage claims rejected by HMRC are outlined in the consultation document, including a room above a detached garage used as an office by the purchaser, when part of a large, detached, six-bedroom home; leasing the garage of a suburban, semi-detached property to a company for storage; and a paddock area behind the back garden of a substantial residential property in an affluent location being used for informal grazing by a neighbour’s horse.
[This is not legal advice; it is intended to provide information of general interest about current legal issues].
Side hustles, start-ups and other virtual businesses looking to avoid fixed premises costs need to make sure they have a mailing address where everyone can reach them.
Many companies use so-called ‘virtual’ addresses to avoid using their home address on business correspondence or on the public register at Companies House, but many mail handling services restrict their service to cover only identifiably ‘official’ correspondence such as from HMRC or Companies House.
But using this type of restricted service, where non-official mail is returned to sender or simply destroyed, could mean companies are breaking the law, if letters from consumers never reach the attention of the business they have been sent to.
A registered office address “to which all communications and notices may be addressed” is a legal requirement for any limited liability company under Section 86 of the Companies Act 2006.
Where there are no physical premises, a company director’s home address can be used for the registered office, but many prefer to keep that private, instead using a mailing service provider. Using this sort of service is legal, and statutory requirements under anti-money laundering legislation govern their use, but company directors have a responsibility to ensure the service they buy complies with their legal responsibilities.
As well as obligations under the Companies Act, any limited liability company that uses a registered office address through a service provider and knowingly agrees to receive only ‘official’ correspondence could be committing an offence under Regulation 8(1) of The Consumer Protection from Unfair Trading Regulations 2008. This hazard was highlighted recently by the City of London Trading Standards Service, where many providers are based, and they are urging companies to check exactly what they have signed up for.
Said company law specialist, Miss Amy Cusworth of Rotherham-based solicitors Oxley & Coward Solicitors LLP: “This is just one aspect of company formation and operation that may not be identified in the excitement of getting a new business off the ground. Without previous experience, founders may not realise the very real responsibilities that a company director carries. Making sure that all post can reach you is one very simple thing to get right, and the cost of getting it wrong could be significant. It’s not just potential penalties, it’s a black hole in customer service terms, which can directly impact reputation.”
“A regular company health check with a professional is a good idea, as it’s not just at set up where directors need to check they have covered all bases: legislation is always changing and a growing company may have additional responsibilities”.
Limited companies also need to ensure that they comply with the Companies (Trading Disclosures) Regulations 2008. This brought together various regulations from different areas of law to set out all the ways in which a company must make public its registered name and other registration details, and how the company must respond to enquiries.
This includes that all business letters, order forms or websites must include the registered company name, place of registration, registered number and address of registered office. The registered name must also be displayed on communications such as notices, cheques, orders for money, goods or services, invoices, receipts and other forms of business correspondence or documentation including signage at premises.
She added: “For sole traders and partnerships there are fewer rules, but there is still a requirement to make sure that customers and suppliers know who they are dealing with and how to make contact.”
Where business is carried on under a trading name, then the full name of the owner or partners must be displayed, together with an address where correspondence can be received, and legal documents served. This must be displayed at any premises where customers visit, and included in any communication, such as letters, invoices and the business website. Larger partnerships do not have to list all named partners if they make the list available via other routes.
[This is not legal advice; it is intended to provide information of general interest about current legal issues].
Spring, warm weather and longer days sees a surge in interest in garden works each year, and where householders improve and replace, boundary disputes are sure to follow…
One recent long-running case saw an Essex couple fighting over six inches of disputed land ownership for eleven years, with costs predicted to be as high as £60,000. The couple, Philip and Denise New, say they have had to remortgage their home to cover the costs after losing their case.
The argument started after they replaced rotten fence panels: they say they used the original cement posts that had been there for 50 years, but their neighbours said the fence was in the wrong place and that the News were trespassing on their land.
Mediators and land professionals were called in, but the neighbours were unable to reach any agreement over the disputed land, with the case finally reaching the High Court.
Property law expert Miss Amy Cusworth of Rotherham town solicitors Oxley & Coward Solicitors LLP commented: “This was an extreme example, but boundary disputes have a tendency to inflame neighbour relationships.
“The best approach is to try and avoid arguments arising in the first place, by having a quiet chat with neighbours before you do the work. If that highlights a difference of opinion and you can’t resolve things, then staying civil is important. You still have to live next door to each other and even if you think a house move may be a solution, remember you have to declare any disputes when you come to sell a property these days.”
Boundary problems often arise because nobody knows who owns and is responsible for a fence or the location may not be clear from Land Registry records. While modern housing will clearly state who owns which boundary, or whether it is a party fence, it is not always clear with older properties. Locating original title deeds or checking with the local authority may help to recover old documents but if no documentary evidence is available, then more work will be needed.
One option is to apply to the Land Registry for what is known as a ‘determined boundary’, obtaining an expert’s report to make your case and submitting with a surveyor’s drawing of the proposed boundary. Approval is not a guaranteed solution, as the neighbour must still agree with the determined boundary; if they don’t then it would mean going to a tribunal.
Otherwise, an offer of payment for any area of land under dispute, in return for setting an agreed boundary may be a solution.
Another possibility where there is uncertainty over the boundary line would be to fence the area concerned, then after ten years an application for formal ownership can be made, claiming ‘adverse possession’. This may be an option where the adjoining landowner is not known or other situations where no immediate neighbour is involved and actively disputing the boundary.
Establishing where the boundary is and who is responsible for it does not place any requirement on the owner to replace a fence, so if you are the one determined on the upgrade, it may be worth considering offering to pay for it. There is no reason why not, even if you are not the one who is responsible, but you will still need to get agreement from your neighbour first. Discussing what you have in mind also gives an opportunity to agree who is responsible for future maintenance.
She added: “If you really don’t feel able to have an initial conversation, or if you’ve already landed yourself in the middle of a red-hot boundary dispute, then that’s the time to call in a professional to act as intermediary with your neighbour, rather than pressing on and raising the temperature further. Then, if you reach agreement, you may have to declare the dispute, but you can say it was settled”
[This is not legal advice; it is intended to provide information of general interest about current legal issues.]
The power of naming and shaming
Hitting the right note when it comes to banter and pronouns in the workplace
By Miss Amy Cusworth, employment law specialist with Rotherham Solicitors, Oxley & Coward Solicitors LLP
“What’s in a name?” asks Shakespeare’s Juliet, declaring that a rose would smell just as sweet whatever we call it.
But that argument is unlikely to hold water in today’s working environment. Getting names exactly right is increasingly important, whether it’s the pronoun you use for someone or the informal ways you may address colleagues, using a nickname or endearment.
I was only joking…
A ‘term of endearment’ suggests affection, but such expressions may result in individuals feeling harassed or discriminated against.
And that’s important to consider when you see how workplace banter is driving a surge in claims against employers: analysis[1] identified a 45 per cent rise in such claims between 2020 and 2021.
These claims are under the Equality Act 2010 which protects people from discrimination, harassment and victimisation related to one of several protected characteristics. These are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
For banter to be unlawful, its purpose or effect must violate a person’s dignity, or create an intimidating, hostile, degrading, humiliating or offensive environment.
This is where employers need to be taking temperature checks on the underlying culture if they wish to avoid problems arising. Employees might think it’s all just part of a jokey environment, but their comments may constitute bullying or harassment if someone is subjected to discriminatory jokes, and this can be hot territory when it comes to age, gender, sexual identity, race and nationality.
Examples from recent claims demonstrate this, first of all in relation to age, whether young or old. One 69-year-old plumber was known as ‘half-dead Dave’ by colleagues and won £25,000 in damages for age-related discrimination. A similar award was made to a woman whose boss humiliated her in front of colleagues and customers by calling her a ‘dinosaur’ because she was going through the menopause.
At the other end of the age banter scale, Frances Fricker, a woman in her 30s, won her claim of sexual harassment after her boss referred to her as ‘good girl’, even after she objected, and harassed her to change her profile images on social media saying she looked fat. As the tribunal judge said: “Some phrases, whilst not regarded as taboo, are generally regarded as inappropriate in the workplace. Referring to a woman in her late-30s with a school-age child as a girl is demeaning.”
And, as the judge went on to say: “Language evolves over time. Words and phrases that might once have seemed harmless are now regarded as racial, homophobic and sexist slurs.”
This is reflected in a claim for racial harassment which was upheld after an employee of Indian origin was called a ‘cheeky monkey’, although the tribunal accepted this could in other circumstances have been considered innocent banter.
Outcomes such as this demonstrate how hard it can be to police colleague interactions as an employer. Comments may rely on context, and there is often a fine line between what may be considered harmless banter and what may amount to unlawful discrimination or harassment under the Equality Act.
But defending cases for unlawful discrimination and harassment is expensive and time-consuming and with no limit on the amount that can be awarded, it’s important that employers try to mitigate the risk, with appropriate policies and regular diversity and equality training for staff. A clear path for staff to raise concerns is also important, and when such concerns are raised, action must be clear and purposeful. Also to bear in mind is that it may not be the member of staff who complains, but a colleague who is unwilling to stand by and allow name-calling or bullying to take place.
Just call me xyr…
Another naming minefield for employers relates to gender identity and preferred pronouns.
Should you encourage staff to add pronouns to their email signatures? And do you understand all the different expressions of gender identity, as it may not simply be a choice of he/him, she/her, they/them.
Recently it was revealed that Soho House, the private members’ club for those in the arts, politics and the media, offered a choice of 41 pronouns for its members to choose from, ranging from the mainstream to the obscure, including eir, ners, pers, thon and xyr. The topic even has its own special day: International Pronouns Day is the third Wednesday in October.
While the practice of adding pronouns to emails seems to have started in academic circles it has now spread widely across the corporate world. Some employees may actively wish to give their pronouns, and that is their choice, but staff are also being asked to cite their preference and many report this is not just on emails, but also within meetings and online profiles, such as LinkedIn.
While enforcing a company-wide policy may be presented as a move towards greater openness and inclusivity, some would argue this can act to exclude those with different views and potentially breach equality legislation itself. Mandating declared pronouns or creating situations where it’s difficult to avoid, could be coercive.
The extent to which the topic has become contentious is reflected in the guide developed by campaign group Sex Matters on the use of gender pronouns in the work environment. The group was launched by Maya Forstater, who won a landmark appeal tribunal over gender self-identification.
She had made a claim for discrimination after being sacked for saying that trans women are male or ‘honorary female’, arguing that sex is immutable and should not be conflated with gender identity. On appeal, the judge ruled that her comments were protected as a ‘philosophical belief’ within the meaning of the Equality Act 2010, saying that the only types of beliefs excluded from protection were extreme ones “akin to Nazism or totalitarianism”.
The ruling said that Forstater’s “gender-critical beliefs, which were widely shared, and which did not seek to destroy the rights of trans persons, clearly did not fall into that category”.
So, this landmark case confirmed that both those holding a gender identity belief and those holding a gender critical belief are protected under the law.
But whether conduct arising from such belief may be discriminatory to trans-people is a different question, relying on the facts of each case. Certainly, someone with gender critical beliefs cannot indiscriminately address trans persons in derogatory terms or ignore preferred forms of address, as this is likely to constitute harassment or discrimination.
This is the challenge facing Dr Mackereth, a declared Christian, who is appealing against a tribunal decision which found that he was not discriminated against on the grounds of religion or belief when he was dismissed for refusing to address transgender patients by their chosen pronoun.
Dr Mackereth is relying on a theological argument and claims that his belief is shared by the majority of Christians. An important difference between the Forstater and Mackereth cases is that the doctor argues that his beliefs entitled him to misgender transgender individuals, where Ms Forstater expressed her beliefs but used preferred pronouns.
These cases demonstrate just some of the difficulties faced by employers in looking to create a culture that is inclusive and emphasises the importance of appropriate policies and keeping up to date with this fast-moving area of employment law.
Frances Fricker vs Gartner UK Ltd
Forstater v CGD Europe and ors (Index on Censorship and Equality and Human Rights Commission – intervening)
Dr David Mackereth v (1) The Department for Work and Pensions (2) Advanced Personnel Management Group (UK) Ltd
[1] GQ|Littler
New Tax Year – Key changes for 2022 you need to know about – Solicitors Rotherham
As we move into the new tax year, we are reminded that 2022/23 may be particularly tough on our finances. It is essential to look ahead and be prepared for changes to the law and how these might affect your tax and other financial circumstances. In this article, we look at five key changes for the coming year.
National Insurance increase
As part of the UK government’s plan to create a health and social care levy, National Insurance rates will rise by 1.25 per cent from 6 April 2022. The idea is that those in employment will contribute to funding the social care crisis and the NHS. The additional funds will be taken alongside your usual National Insurance contributions in 2022-23. However, it is anticipated that the levy will be taken separately from April 2023.
National Insurance thresholds
The lower earnings limits in relation to National Insurance is set to increase from £9,880 to £12,570 from July 2022. What this means is that you will be able to keep more of your money before you are liable to pay National Insurance contributions, and is going to benefit around 30 million people in the UK. This measure has been implemented to offset the rise in rates. However, the upper earnings thresholds will remain the same at £50,270.
Dividend tax rates to increase
If you earn money from dividends, you may find yourself subject to additional tax charges. You may be required to pay dividend tax if you have invested money in a company and earn money from dividends on your company shares. This is because as of April 6 2022, there will be an additional 1.25 percentage point rise. However, the dividend allowance of £2,000 remains the same, and you will only be charged tax on the amount you earn above the dividend allowance.
Scottish income tax thresholds to rise
If you are based in Scotland, you should be aware of potential changes to the rate of income tax you pay. In December 2021, the Scottish Parliament set out its draft Budget, which contained plans to raise some of its income tax thresholds from April 2022.
Increase in National Minimum Wage
An important change for both employers and employees that comes into force right before the new tax year is an increase in National Minimum Wage (NMW) rates. The new rate of NMW will apply from April 1 2022. For all employees aged 23 years or older, the rate will increase from £8.91 per hour to £9.50 per hour.
Solicitors Rotherham – Oxley & Coward LLP
A legal guide to life after divorce – Solicitors Rotherham
If you have recently divorced, you may be wondering what happens next. Going through the divorce process can be challenging, and even after you have come to an agreement, there may still be legal matters left unresolved.
When you are married to someone, your lives are intricately intertwined, and there are several other legal and practical matters you must address. This article looks at several things you need to consider after your divorce has been settled.
Enforcing your financial consent order
Your financial consent order is a written document that sets out clearly how your assets and finances will be divided in divorce. It may also include any ongoing financial arrangements, including maintenance payments. How do you make sure the financial consent order is followed?
Transferring property
One party may be required to transfer ownership of a shared property to the other and also transfer the mortgage.
Selling property
You may have agreed to sell the property and divide the profit.
Maintenance payments
When one spouse is required to pay maintenance to the other, you should ensure a method for making regular payments, such as setting up a standing order.
These are examples, but a solicitor will be able to advise you fully as to how you can ensure the arrangements set out in your financial consent order are followed through.
Update your will
If you made a will before you got divorced, this will is still valid – but it may cause several problems in the event of your death. Most people appoint their spouse as an executor and/or beneficiary of the estate.
In England and Wales, the effect of divorce on your will is that it will treat your former spouse as if they predeceased you, meaning that they will no longer be able to act as your executor or benefit from your estate. As a result, it is essential that you appoint another executor and clarify who you wish to inherit from your estate. For the majority of people, the most straightforward way to ensure their estate is distributed without issue and as they would wish is to make a new will.
Change your Power of Attorney
Similarly, if you appointed your ex-spouse as your attorney, you may wish to update your Power of Attorney document. Divorce terminates your spouse’s appointment as your attorney, and if you have not appointed another attorney, you leave yourself without a Power of Attorney in place.
Of course, some couples remain an important part of each other’s lives, so there is no law preventing you from appointing a former spouse as your attorney; it is simply uncommon to do so.
Solicitors Rotherham – Oxley & Coward LLP
Sunak’s tight grip on tax cuts to tackle cost of living crisis – Solicitors Rotherham
Responding to the latest inflation figures, the chancellor keeps attention on the long-term picture
The combined pressure on the UK’s economy from the coronavirus pandemic and the war in Ukraine took center stage in the Chancellor’s 2022 Spring Statement, as he outlined his planned support for households and businesses.
Keeping a tight focus on the way ahead, outlining a long-term tax plan designed to create the conditions for higher growth and further tax cuts in future, his statement lasted less than 30 minutes. This breaks the record for the shortest budget statement, held by Benjamin Disraeli since 1867 with a speech lasting 45 minutes. It was just a tenth of the longest ever, delivered by Gladstone in 1853, lasting 4 hours 45 minutes.
With the Office for Budget Responsibility forecasting that inflation will average 7.4% this year, the chancellor outlined a series of measures designed to tackle the cost of living crisis and benefit pockets today, including a further £500 million for the Household Support Fund. This doubles the pot announced last autumn and will continue to be distributed by local authorities to those in most need with food, energy and water bills.
He announced a £3,000 rise in the threshold before national insurance contributions have to be paid by workers. The starting point is now in line with income tax, so from July neither income tax nor national insurance will be payable on the first £12,570 of income. However, the chancellor confirmed that the planned 1.25% rise in national insurance contributions will still go ahead, despite considerable lobbying, saying it was vital to provide for future health and social care.
The other big topic in the run-up to the Spring Statement was the soaring price of fuel at the pumps because of worldwide supply disruption surrounding Russia and the sanctions imposed following its invasion of Ukraine. The chancellor responded by announcing a 5p per litre reduction in fuel excise duty for the next 12 months, with effect the same day[1].
Also on the energy agenda, the government announced a cut in the VAT rate to zero for homeowners installing sustainable energy solutions, including solar panels, heat pumps, insulation and wind or water turbines.
But any further cuts to household taxes remain a promise for the future. The cost of servicing the national debt has risen for the third month in a row and predictions now are that service costs will rise as high as £83bn during the next fiscal year, the highest level on record. Borrowing as a percentage of GDP is expected to be 83.5% of GDP in the coming year.
Against this backdrop, Mr Sunak said it would not be responsible to make further tax cuts now, but he gave a flavour of his future-focused tax planning strategy, by promising that if the economy remained on track for predicted growth in future years, the basic rate of income tax would be cut from 20% to 19% in 2024.
However, the previously announced freezing of many allowances remains in place, including personal income and higher rate tax allowances from 2022-23 onwards, and exempt amounts for Capital Gains Tax, Pensions Lifetime Allowance and the threshold for Inheritance Tax all staying at their current rate up to and including 2025-26.
Turning to enterprise, the chancellor outlined his long-term strategy to drive up innovation and skills and to encourage investment towards a high productivity economy.
For small businesses, there will be an extension to the Employment Allowance, which provides relief from National Insurance payments to encourage employment. This will increase by £1,000 to £5,000 from April.
On the high street, retail, hospitality and leisure businesses will benefit from a 50% discount on business rates bill from April, up to £110,000.
Looking again at the longer term, Mr Sunak outlined the second part of his tax plan, towards a new culture of enterprise. He predicted further incentives in the Autumn Budget following consultation with business, looking at how best to boost investment in people, capital and ideas to boost UK productivity. This will include a review of technical skills development, including the apprenticeship levy, reform of research and development tax credits, and routes to increase private sector capital investment.
Said commercial expert Miss Amy Cusworth of Solicitors Rotherham, Oxley & Coward LLP : “This was a short, sharp statement from the chancellor, focused, as expected, on the economic impact of the pandemic and the fall-out from Russian action in Ukraine.
“Facing up to the current world order seems to have kept the chancellor away from some of the granular detail in tax planning that we have been expecting, including an overhaul of inheritance tax following the recent consultation. While the likely changes continue to wait in the wings, individuals and anyone planning to sell their business should keep a close eye on their tax planning.”
She added: “Looking to property, the announcements around nil VAT on energy efficient measures will be welcome for landlords who need to comply with long term energy efficiency targets. There were no new incentives for the residential property market, as this has remained very busy even after the ending of a temporary reduction of stamp duty. While property demand remains strong and supply is short, sellers are in a strong position should they decide to move on.”
[1] At 6pm on 23 March 2022
Risk management when the commute is all at home Solicitors Rotherham
The Government’s Living with Covid strategy removed one of the final hurdles towards a return to full-time office working, but many are expected to continue working from home under the new regime.
The potential of reduced property costs combined with positive feedback about home-working from employees has seen many companies agreeing working arrangements which enable staff to continue to work from home all or part of the time.
But despite the ending of many Covid-related mandatory requirements, welfare in the workplace remains a top priority, whether at home or company-owned premises. Companies have a legal obligation to protect workers from the risk of physical and mental wellbeing, wherever they are based.
One recent case to hit headlines involved a German worker, who won a claim for injury after falling on the stairs to his home office. The Court ruled that taking the stairs at the start of the day to his home office was solely for the purpose of starting work and an insurable activity in the interest of the employer.
Said Miss Amy Cusworth, employment expert with Solicitors Rotherham, Oxley & Coward LLP : “This case was heard in the German national courts, but it’s a useful prompt of the legal obligations on companies in the UK. There is a duty to conduct a risk assessment of the working environment for employees and to have insurance in place, wherever individuals are based.”
The Health and Safety at Work Act 1974 requires employers to take all reasonable steps to ensure the safety of its employees to provide a safe place of work, a safe means of access to that place of work, a safe system of work, and safe plant and equipment.
This includes conducting regular risk assessments of the working environment and where employers are unable to carry out a full risk assessment, it may involve asking employees to undertake a self-assessment of their workspace and equipment. Any changes needed for a safe and healthy environment are the responsibility of the employer.
Organizations must also ensure that their insurance covers employees working from home and must ask individual employees to check there are no restrictions imposed on them working from home by their home insurer, mortgage provider or landlord.
As well as physical safety, mental wellbeing is high on the agenda, with the Health & Safety Executive saying that stress, depression and anxiety constitute more than half of all new cases of work-related ill health.
The Health and Safety Executive has guidance for employers on working from home arrangements and guidance on undertaking risk assessments.
Miss Cusworth added: “As well as maintaining health and safety requirements, regular assessments may be invaluable in keeping other aspects of home-working monitored and up to date, such as data privacy and confidentiality. Diligence in managing IT issues remotely, such as applying security patches and updates, and keeping policies and processes under constant review, can make all the difference in addressing vulnerabilities and avoiding breaches.”
When creators go for a song – Solicitors Rotherham
Singers Ed Sheeran, Sam Smith and Dua Lipa may be top of the pops, but they are all facing lawsuits alleging they have lifted song elements from other artists.
Sheeran is being challenged in the English courts over his 2017 hit Shape of You; Dua Lipa faces two lawsuits in the USA; and Sam Smith, the artist who penned a James Bond theme, faces action in Los Angeles over the song Dancing with a Stranger.
Said commercial property law expert Miss Amy Cusworth of Solicitors Rotherham, Oxley & Coward Solicitors LLP: “It may seem surprising that struggling artists are prepared to take on music giants like Sheeran, Smith and Lipa, but copyright challenges involving a song’s lyrics or melody regularly reach the courts.
“When a successful musician and substantial royalties are involved, the stakes are high, but protecting your work is an important lesson for all creators, whether you consider yourself an artist or an entrepreneur.”
Copyright is one way in which intellectual property can be safeguarded and the protection is automatic when an original work is created. It does not involve making an application or being added to any register, unlike registering a trade mark, design or patent. Original work can be marked with the copyright symbol © together with the creator’s name and year of creation, but use of the mark is not a requirement to obtain protection.
The law guards against original work being used by others without permission, whether in the creative arts, such as literature, drama, music, art, photography, or origination for commercial purposes, such as technical drawings or advertisements. Items do not need to exist physically, and copyright will apply in the creation of software, web content or databases. The protection extends also to recordings, broadcasts and layouts for written, dramatic and musical works.
Anyone who copies or makes use of an original work, whether passing it off as their own or sharing it with others without the permission of the original author, is likely to be infringing the originator’s copyright. If the work is shared or adapted overseas, then it may be protected through international agreements such as the Berne Convention.
“Some breaches of copyright may be easier to identify than others,” explained Miss Cusworth. “Any claim of infringement will need to go beyond demonstrating a material similarity to demonstrate a causal connection through which actual copying of the copyrighted work could have taken place. When it comes to song writing, it’s not enough that the lyrics or melody may sound the same, there must be evidence of a direct link.
“Other more easily identified breaches include playing live or recorded music in public without a licence, or photocopying, scanning or printing off the content of a book or publication beyond the limit allowed for personal use, such as academic study.
“Another common breach is using a photograph copied from another organisation’s web site without permission. Even if you modify an image you have found, it is still a breach of the original copyright, unless you have permission to do so.”
Obtaining permission, paying any usage fee and crediting an original author on the basis of an informal agreement may be feasible in some instances, but permission may involve entering into a formal contract or licensing agreement which sets out the ways in which the original work can be used. For example, permission and a fee to use a photograph may restrict its use to a particular medium, with further fees payable if used in other ways.
Added Miss Cusworth : “If you haven’t already done anything to safeguard your work, your brand or concept, then it’s worth getting some expert advice about first steps in intellectual property protection. If you’re unsure whether you have anything to protect, you can start by running through the IP Health Check on the Intellectual Property Office website.”
World Intellectual Property Day – 5 key steps to protect your intellectual property – Solicitors Rotherham
World Intellectual Property Day 2022 will be marked on 26th April and is designed to raise awareness about protecting all of the various types of intellectual property. In this article, we look at five of the key things all business owners should look at.
1. Take stock of all of your intellectual property
First things first, in order to properly manage your intellectual property, you will need to look at what you already have in place. You should establish procedures for reviewing your IP including trademarks, patents, copyrights and designs.
You will also want to think about property related to registered IP, such as domain names. The Intellectual Property Office (IPO) has a free health check tool [https://www.ipo.gov.uk/whyuse/business/iphealthcheck.htm] which allows you to determine what IP you own and what still needs to be protected.
2. Check that what you plan to protect is original
If you have property you are yet to register, such as a business name, logo, patent or trademark, you must check that it is original before you attempt to take steps to protect it. You can use patent searches or trademark searches early on in the process to determine whether someone else has protected your idea or design. This can be a complicated process, and you may wish to instruct a professional to assist you.
3. Register your property
Registering intellectual property can take some time, so you will want to begin as early as possible. To register a trademark, the process will take around six months. To register a patent in the UK, it will take two to four years, but it may be possible to have a patent fast-tracked. A specialist solicitor will be able to advise you whether your application might qualify.
4. Check and update your contracts
One of the biggest dangers for intellectual property is actually your own employees, suppliers, designers, and other staff members. It is vital that your employment contracts and contracts for consultancy clearly state that your business is the owner of any intellectual property that arises from work carried out. Similarly, your workers should keep evidence of the development of intellectual property, such as dated drawings and signed copies. This can help should an IP dispute arise.
5. Check for infringements regularly
While properly registering your intellectual property goes a long way to prevent infringement, it is still very common. You should establish processes in your business to check for infringement regularly. This may include simple steps such as using search engines to look for anyone passing off your IP as their own. If you find infringements, you should seek the advice of a specialist intellectual property lawyer.
https://www.brchamber.co.uk/intellectual-property-when-creators-go-for-a-song/
World Autism Awareness Day – The law and neurodivergence in the workplace – Solicitors Rotherham
World Autism Awareness Day 2022 will be celebrated on Saturday 2nd April, and is an excellent opportunity for employers to learn more about assisting workers with Autism Spectrum Disorder, a form of neurodivergence. In this article, we take a look at neurodivergence in the workplace and how employers can both comply with the law and support neurodivergent workers.
What is neurodiversity?
Neurodiversity is a broad term for the infinite number of ways the human brain can operate, leading to diverse ways of thinking, retaining memories, and paying attention.
People work best when they are supported in different ways. Those with dyslexia, ADHD or autism often struggle in a traditional workplace environment to perform to the best of their ability. Understanding neurodiversity can help employers make better decisions and get the most out of their team.
Supporting neurodiverse employees
One of the biggest problems for employers is that employees often do not feel comfortable disclosing their neurodiverse condition in the workplace, or they may be undiagnosed. When employers fail to actively support neurodiverse workers, they could miss out on the benefits of thought diversity, increased employee productivity, and even struggle to hire the best talent.
Neurodiversity and the law
It is important for employers to understand that an employee’s neurodiversity could qualify as a disability under the Equality Act 2010. However, not all neurodivergent employees will consider themselves to have a disability. Under the law, employees have the right to identify as having a disability, or not to identify. But, the legal definition of ‘disability’ under the Equality Act 2010 means that neurodivergent workers are likely to meet the conditions. Government guidance states:
‘A disability can arise from a wide range of impairments which can be … developmental, such as autistic spectrum disorders (ASD), dyslexia and dyspraxia.’
If an employee identifies as having a disability, they are provided with certain rights and protections under the law. Employers must make reasonable adjustments to allow them to perform their best work and protect them from discrimination, harassment and victimisation.
Similarly, workers are protected from ‘discrimination by association’. This means that if an employee is associated with a person who has a disability, such as a partner, child, or person they care for, they are also protected from discrimination, victimisation and harassment under the law.
Workers with a neurodivergent condition should also be wary of stating that they do not consider themselves disabled, as this could affect their legal protection.
Reasonable adjustments
Many reasonable adjustments may be required to help neurodivergent workers perform best. Typically this may include things related to focus, attentiveness and distraction. For example, allowing the worker to take shorter breaks throughout the day, providing them with a space free from distraction or enabling them to work from home and support with social interaction in the workplace. Support for neurodivergent workers should be assessed on a case by case basis.
World Autism Awareness Day Solicitors Rotherham
Rights of way: Using the UK countryside responsibly – Solicitors Rotherham
In England and Wales, public rights of way give you permission to walk, ride, cycle and drive in public rights of way in the countryside. The Countryside Code also provides rules about ensuring rural areas are safe and enjoyable for visitors and that visitors to the countryside do not infringe the rights of those who live and work in rural areas. In this article, we provide a brief guide to enjoying the countryside responsibly.
Are there restrictions on which parts of the countryside you can use?
If you are considering visiting the countryside, you should check which areas have public rights of way. Definitive Maps and Statements are legal records of public rights of way and will set out which areas are open to the public. You can also check the local authority’s office or website.
The rules are different in Scotland, where ‘right to roam’ rules mean that everyone has the right to enjoy almost all areas of land and inland water, so long as they abide by the Scottish Outdoor Access Code.
The Countryside Code
The Countryside Code [LINK to https://www.gov.uk/government/publications/the-countryside-code] is an important guide for anyone looking to make use of the countryside this spring. There are four key principles:
Respect everyone
You must be considerate to others using the area. Make sure you leave property as you find it, and you are mindful of the safety of others. For example, close gates after you, don’t block access when parking, keep to marked paths and follow any local signage.
Protect the environment
Generally, you should leave no trace of your visit to minimise the impact on the environment. Make sure to take any rubbish with you when you leave, do not light any fires and only have a barbeque in designated areas. Litter is not only dangerous for wildlife, but it is also a criminal offence to litter.
While there is no doubt your dog will love exploring out in the country, it is essential that you keep them in sight and under control – make sure you clean up after them too. Dogs can pose a danger to livestock but may also provoke livestock into chasing you, which can be very dangerous. Give livestock plenty of space and do not disturb them.
Enjoy the outdoors responsibly
You need to keep yourself safe when exploring the great outdoors. Check weather conditions and your route. Make plans in advance to ensure you know what to expect. Remember that some areas may be restricted even though they appear safe. Some areas of land are designed to protect wildlife and should not be disturbed.
Rights of way: Using the UK countryside responsibly – Solicitors Rotherham
World Consumer Rights Day: Buy now, pay later and the law – Solicitors Rotherham
World Consumer Rights Day will be on 15th March in 2022, with the theme of ‘Fairer Digital Finance’. This article looks at one of the most popular consumer credit schemes today – buy-now-pay-later.
Buy-now-pay-later (BNPL) products have rapidly gained traction with consumers, with many of the world’s most popular online retailers partnering with providers such as Clearpay, Klarna, Laybuy and Openpay to give consumers the option to pay in instalments.
The volume of online transactions tripled during the pandemic, increasing uptake of BNPL schemes to around £2.7billion in 2020. However, these agreements are not currently regulated by The Financial Conduct Authority (FCA), and there is concern that agreements may be harmful to consumers.
Do consumers have difficulty understanding the terms of BNPL agreements?
Consumer rights champion Which? has called for stronger protection [LINK to https://www.computerweekly.com/news/252511676/Which-raises-concerns-over-buy-now-pay-later-schemes] for consumers who chose to use BNPL products. Which? interviewed several BNPL users, which revealed that many did not understand the risks and consequences of using BNPL. According to Which?:
“Many of the BNPL users interviewed by Which? did not think of BNPL schemes as a form of credit, meaning they could unwittingly be exposing themselves to serious risks of missing repayments, such as late fees, marked credit reports or referral to a debt collector,”
Regulating BNPL
The UK Government has plans to regulate BNPL providers and make changes to the law. The Financial Conduct Authority (FCA) has recently used its influential power to work with the four biggest BNPL providers. As a result, the FCA has secured changes to the contract terms that consumers must agree to when selecting ‘pay later’.
The BNPL providers have agreed to make the terms of the BNPL offering much clearer, particularly around matters such as contract cancellations. They have also committed to making terms and concepts easier to understand.
Some customers may be eligible for refunds where they have been unfairly charged. Laybuy, Clearpay and Openpay have agreed to change their late payment fee terms, and will also voluntarily refund customers in certain circumstances.
Executive director of consumers and competition at the FCA, Sheldon Mills, said:
“We do not yet have powers to regulate these firms, but we do have powers to review the terms and conditions of consumer contracts for fairness, and have acted proactively to ensure that the BNPL industry adopts high standards in terms and conditions.”
World Consumer Rights Day: Buy now, pay later and the law – Solicitors Rotherham
What to do if an employee refuses to return to the office after working from home? – Solicitors Rotherham
With guidance to work from home where possible now lifted, employers can plan a return to work for employees – many of whom will have been working from home for some time. Employees, however, may have different plans. Many people will still have concerns about the spread of Covid-19, particularly in workplaces where they will spend the majority of the day in the company of others. Employees may feel particularly unsafe if they are unvaccinated, medically vulnerable, or they are living with a person who is vulnerable. In this post, we look at whether employees can refuse to return to work, and the steps employers should take where this issue arises.
Does an employee have a legal right to refuse to return to work?
Yes, but only in certain circumstances. The Employment Rights Act 1996 gives employees a legal right to stay away from their workplace where they have a reasonable belief that it would put them at risk or serious and imminent danger.
Under sections 100(1)(d) and 44(1A)(a), employees have specific protections where they are disciplined, dismissed or treated less favourably after having raised reasonable health and safety concerns.
If an employee refuses to return to work, and they reasonably believe doing so would pose a serious risk to their health and safety, it would be unlawful to discipline the employee and dismissal could result in an unfair dismissal claim.
Will these protections extend to all employees?
In practice, it is likely that this protection will only extend to those who have a particular reason to hold these beliefs. Those who are clinically vulnerable or unvaccinated may be much more at risk than other employees. It is also likely that the protection would extend to those who live with someone who is clinically vulnerable or unvaccinated.
In addition, employees with mental health issues such as stress or anxiety may also believe that returning to work and concerns about risking exposure to the virus may also pose an imminent and serious risk to their health and safety.
Employers must also be mindful of employees who suffer from long-term physical or mental illness, have a disability or who are pregnant have additional protections under the law. Disciplinary action or dismissal against any such employee may amount to discrimination.
Can disciplinary action be taken against an employee refusing to return?
If an employee does not have a valid reason to refuse a return to work, they have a contractual obligation to return to their previous position in their usual place of work. You must provide the employee with reasonable notice.
As a result, an employer will be justified in taking disciplinary action should an employee refuse to do so. You must follow your disciplinary procedures for a failure to follow reasonable instructions or for absence from work. We would however recommend caution in disciplining employees who refuse to return to work, and potentially seeking legal advice on your specific circumstances.
What to do if an employee refuses to return to the office after working from home? – Solicitors Rotherham
To pay or not to pay, that is the question… Solicitors Rotherham
Sick pay policies have been hitting the headlines with many big-name employers withdrawing company sick pay benefits for staff who remain unvaccinated against Covid-19 and have to self-isolate.
The highly infectious Omicron variant has led to mass absences across the country, and while those in England who are vaccinated with at least two doses can avoid self-isolation, those who are unvaccinated are obliged to isolate.
Over recent weeks, retailers from Morrisons and Ocado to Next have said they will pay unvaccinated staff just statutory sick pay (SSP) of £96.35 a week rather than their full company sick pay benefits during their 10 days of isolation, unless there are mitigating circumstances for remaining unvaccinated, such as pregnancy.
Company sick pay may be paid in addition to SSP, or instead of it, and will be set by each individual company. It will often provide entitlement from the first day of sickness, whereas SSP becomes payable only after the fourth day of ‘incapacity’. And while payment under SSP is restricted to a weekly maximum of £96.35, company sick pay policies may provide for an employee’s full wages.
The definition of ‘incapacity’ for SSP has been redrawn during the pandemic, to include those testing positive for Covid-19, or needing to self-isolate having been in close contact with someone who has tested positive.
Not all employers are taking the same approach: the latest retailer to declare its strategy is John Lewis. The employee-owned company has said it will not be treating unvaccinated workers differently to those who have had the jab and will continue to pay full company sick pay to all its staff when they are isolating due to exposure. Others committed to paying all staff their standard company sick pay are supermarket chains Tesco, Sainsbury’s and Asda.
But the issue is complex and employers could find themselves challenged in a tribunal if they do not take care when introducing such changes to company sick pay policy, according to legal experts.
“It’s not a straightforward decision on whether to pay, or not to pay,” explained employment law expert Miss Amy Cusworth of Rotherham Solicitors, Oxley & Coward Solicitors LLP . “A decisive factor will be whether company sick pay is discretionary or an entitlement set out in the employment contract. If it’s an entitlement, then employers could be heading for claims for breach of contract, unfair deductions or constructive dismissal if they try to withhold payments without going through the appropriate process to agree amended terms of employment, unless self-isolating does not satisfy the requirements of their sick pay policy, for example if it relies on ‘incapacity’.”
They added: “If the payments are discretionary, paid as goodwill, then there is scope to introduce this sort of policy, but claims could still arise under the Equality Act 2010 unless employers can justify their actions as proportionate and legitimate. Many people may be choosing against the vaccination for religious or health reasons.”
The Act protects against direct and indirect discrimination based on protected characteristics, which include gender, age, disability, race, sexual orientation, personal relationship status, and religion or belief. Employers may ask questions about health or disability only in certain circumstances, and the Act makes it unlawful to discriminate, or treat employees unfavourably because of pregnancy, after giving birth or during maternity leave.
Discrimination can be justified only where it can be demonstrated as a proportionate means of achieving a legitimate aim.
While a company looking to avoid paying company sick pay to unvaccinated workers may argue that it has a legitimate aim of avoiding or minimising future staff shortages by encouraging vaccine take-up, they could find staff claiming it amounts to a policy of mandatory workplace vaccination by stealth.
It would also require collection of sensitive personal data to identify whether staff had been vaccinated, and their reasons if they have not, giving rise to both privacy and data protection considerations.
Miss Cusworth added: “There could be further unintended consequences, such as staff resisting isolating or avoiding testing, if it could result in loss of earnings. It may also cause a divisive outcome if it creates a ‘them and us’ attitude among workers.
“It’s worth looking at all the options. While it wouldn’t work for most customer-facing retail workers, if working from home is a viable option, then an alternative may be to seek agreement from staff that they will do that if they need to self- isolate.”
She added: “Regular risk assessment, policy reviews, keeping contracts up to date and excellent communication with staff are more important than ever in this fast-changing working and legislative environment.”
Oxley & Coward Solicitors LLP – To Pay or not To Pay – Barnsley & Rotherham Chambers
There is still much uncertainty about the true impact of coronavirus on all aspects of our lives. Inheritance tax is no different, with the fallout of the pandemic affecting the value of estates, inheritance tax planning, and the valuation of business assets inheritance tax has been affected both directly and indirectly. In this article, we look at some of the ways inheritance tax has been affected by the Covid-19 pandemic.
Will inheritance tax rise to cover Covid-19 costs?
According to the National Audit Office, the government has spent in excess of £372 billion on supportive measures related to the pandemic. As a result, the Chancellor must implement measures to offset this expenditure. But will this cause a rise in inheritance tax? The answer is complicated. While the rate of inheritance tax and the thresholds for liability will remain the same, the number of estates liable to pay inheritance tax is increasing.
In January 2022, new statistics from HMRC revealed that £4.6bn in inheritance tax was paid to the Government between April and December. That represents a £600m increase when compared to the same period in 2020. But why?
Increased value of estates
Currently, inheritance tax is charged on the part of the deceased’s estate that is above £325,000 at a rate of 40%. However, the UK’s housing crisis and soaring property prices mean that more people than ever are becoming liable to inheritance tax charges.
Lack of inheritance tax planning
The increased value of estates has an impact on people from all walks of life. Many people who would have never expected the value of their property or other assets to exceed the inheritance tax threshold are failing to properly plan for inheritance tax and take steps to mitigate their bill.
Similarly, the pandemic has sadly caused thousands of sudden deaths. Many people may never have even considered estate planning because they were previously in good health.
How to mitigate your inheritance tax bill
But there is some good news when it comes to inheritance tax. With proper estate planning and a properly drafted will, you can take steps to dramatically mitigate your inheritance tax liability. For example, when you leave your home to a descendant in your will, the threshold is increased by £175,000. That is a huge potential tax saving.
If you are concerned about inheritance tax, you can put your mind at ease by discussing your concerns with an experienced estate planning solicitor who will advise you on your specific circumstances.
Oxley & Coward – How has Covid-19 affected inheritance tax?
The Government’s latest lifting of Covid-related restrictions, allowing business to return to the workplace, should mean worker welfare is a top priority according to health and safety experts.
Ensuring workers and customers are protected from the physical risk of infection and the potential impact of the pandemic on mental health is essential if companies are to avoid damaging investigations and potential prosecutions.
The latest annual report of the Health and Safety Executive (HSE), the body responsible for enforcing responsibilities, shows that 93,000 cases of Covid-19 in 2020/21 were attributed to exposure to the virus while at work.
Mental wellbeing is high on the agenda according to the HSE, with stress, depression and anxiety now constituting more than half of all new cases of work-related ill health. A total of 822,000 employees were reported to be suffering from work-related stress, depression or anxiety in 2020/21, with the HSE identifying the coronavirus pandemic as a major contributory factor.
So far, few prosecutions have been brought against employers, but the HSE is undertaking spot checks and issuing enforcement notices. Breach of an enforcement notice is grounds for prosecution, and the message is clear: employers need to keep on top of the latest guidance and legislation.
Under the Health and Safety at Work Act 1974 employers must take steps to protect employees, whether in the workplace or acting offsite in a work capacity. And all employers who have five or more in their workforce must have a written health and safety policy available to employees.
Said Amy Cusworth, company expert with Rotherham solicitors Oxley & Coward Solicitors LLP : “These are statutory duties which must be dealt with in all circumstances, but they are certainly more challenging during the pandemic, as we are dealing with a constantly changing situation. Demonstrating health and safety is a priority by regular communication with staff is good practice, as is keeping policies up to date and everyone aware of their responsibilities.”
The Health and Safety Executive has a range of information for employers on how to make the workplace safe and protect staff during the pandemic, and offers a Talking toolkit as a resource for employers to handle work-related stress.
Oxley & Coward Solicitors – Back to work means business must keep the workplace Covid-safe – BR Chamber
Having open workplace conversations about menopause – Solicitors Rotherham
Employers should check they are having the right conversations to support those experiencing problems in the workplace because of the menopause.
With growing numbers of women continuing in the workforce through middle age, and rising numbers of tribunals referencing the menopause, the topic is set to be a key driver for workplace policies in future.
Official labour statistics show that the over-50s accounted for 72 per cent of the growth in the employment of women between 1992 and 2012. Alongside, figures from the courts reveal that menopause was cited in twice as many tribunal cases in the first six months of 2021, compared with the whole of 2018.
It’s important also for employers to recognise that it is not just those who were gender-assigned as women at birth, as it may also affect people who are trans or intersex. Relatives and carers of someone going through the menopause may also be affected, for example due to sleep disturbance, a common symptom of the menopause.
The Health and Safety at Work Act (1974) requires employers to ensure the health, safety and welfare of all workers. In the case of those experiencing the menopause, this could include risk assessments that consider their specific needs, such as adequate ventilation to avoid over-heated working conditions, or provision of appropriate toilets and access to water.
The Equality Act (2010) prohibits discrimination on the grounds of sex, whether directly, indirectly or by harassment. An example in the case of menopause could be where an employer does not consider symptoms arising from the menopause to be mitigating factors in reviewing performance, where similar symptoms arising through another condition would be considered for male workers.
An important milestone in recognising the impact of the menopause came with a tribunal judgement handed down in 2019. This involved a woman who suffered significant medical problems together with stress, memory loss and tiredness. While the tribunal’s judgement did not suggest that experiencing the menopause amounted to a disability, it said that the symptoms may have physiological and physical consequences that meet the definition of disability under the Equality Act, with a substantial and long-term adverse effect on a person’s ability to carry out day-to-day activities.
Said employment law expert Amy Cusworth of Rotherham town solicitors : “Many employers still feel this is a subject they do not want, or perhaps need, to tackle, but it is an issue which cannot be ignored and a clear policy is important. The impact for some will be the same as having a long-term health condition, requiring reasonable adjustments.”
But while open discussion can help to avoid difficulties arising, enabling women to feel they can raise problems, while also making sure that fellow workers appreciate the impact of menopausal symptoms, a sensitive approach is essential.
That’s demonstrated by one of the latest cases to reach a tribunal (January 2022) where sales assistant Leigh Best won an age and sex harassment case after her male boss made loud comments about her going through the menopause in front of customers. The hearing panel found that the employer had been tactless in how he approached a “highly sensitive topic”, creating a humiliating environment for her at work.
Having open workplace conversations about menopause – Solicitors Rotherham
by family law expert Sarah Scott of Rotherham based solicitors Oxley & Coward Solicitors LLP
The ongoing pandemic has placed many pressures on our personal lives, with one in five relationships struggling to survive according to research by University College London. It’s a further regrettable statistic from the past two years, but if divorce is inevitable, couples who work together to shape their separate futures are likely to have a more positive experience than couples who go into battle over financial and childcare arrangements.
A major development intended to help change the conversation for couples is the introduction of no-fault divorce. The Divorce, Dissolution and Separation Act 2020 will come into force in April 2022, replacing the existing Matrimonial Causes Act 1973, which has required one party to prove their partner is at fault through adultery, desertion or unreasonable behaviour, with the only alternative being a period of separation: two years where both parties agree to divorce, or five years if one side does not consent.
The new Act allows married couples to issue divorce proceedings without assigning blame, as only a statement of irretrievable breakdown will be needed. It also makes it possible to file for divorce jointly, allowing couples to reflect a mutual agreement to part.
While the Act introduces a minimum period of six months from initiating divorce proceedings to when the final order can be granted, this is unlikely to impact couples any more than the present process, because of the severe delays presently affecting the family courts.
According to government figures, most cases are taking more than nine months to be heard, which is one-third longer than before the pandemic. And figures like this have led the justice secretary Dominic Raab to say that he wants to reduce the number of family law cases that reach court.
While the minister has emphasised that cases involving safeguarding or domestic abuse should continue to be heard by a judge, he believes that all others should be handled outside the court system, which would mean around half of all cases being settled by other means.
The pandemic has created many resource pressures, with resulting delays or cancellations most likely to affect financial disputes because cases involving the safety of children will be prioritised. The courts are also under pressure because more couples are using them to settle divorce disputes after cuts to legal aid in 2013 saw a fall in the use of mediation by couples, as without professional guidance many couples were not aware of alternatives to court.
Official statistics for April to June 2021 reflect this, with 66,357 new cases started in the family courts, up 14% on the same quarter in 2020. And the proportion of cases going to court with no legal representation for either party stood at 38%, an increase of 24% from the same period in 2013.
It’s understandable that couples may find themselves feeling confrontational, as the most difficult aspect of divorce is agreeing the terms on which you divide joint assets, agree any form of financial maintenance, and how you will care for any children you have together. When this involves complex financial assets, it is more likely couples will call on specialist input, but for anyone needing to reach agreement, getting guidance in the early stages is likely to result in a faster, more cost-effective and mutually agreeable outcome.
Having the involvement of someone with the right expertise can help avoid accusations and blaming from the outset. And it’s particularly important when children are involved. Parents should talk to them and prepare the ground for separation, while avoiding putting children in a position where they feel they must take sides.
Mediation should be the first port of call unless there are worries of bullying or violence from a former partner. Talking things through calmly and openly is always best, and it may help to have someone sit in to help focus those conversations on positive negotiation, whether it’s just the two of you, or with your children. Expert input can also ensure that any agreement over assets or custody arrangements is fair for both sides.
Arbitration is another alternative to court, if separating couples are unable to come to an agreement through mediation. In these circumstances, an arbitrator is a legal professional with specialist training, who will send their decision to the court so it can be turned into a legally enforceable order. This would have the same force as an order initiated by the court itself, but cuts out the waiting time for a case to go to court, and also, as a private arrangement, once a date is fixed, it will not be pushed aside by other cases with higher priorities.
Because of such advantages, many couples have responded to the long delays in the courts by opting for arbitration, knowing they will see results in days instead of months. While it is popular with the wealthy because it keeps financial matters out of the courts, it is often more cost-effective for couples because having a fixed, shorter timeframe can keep the lid on legal fees.
Whatever route is taken, seeking out the right help and support can make all the difference for couples, so they come through the divorce with a sense of a positive resolution, where everyone has an outcome that works for them and feels fair.
With the snow season kicking off in the UK, Europe, and beyond, many people will be flocking to ski resorts and snow activity sites once again. However, as with all sports, there comes a risk of injury. If you have been injured as a result of a skiing, snowboarding or other snow sports accident, you may be entitled to bring a claim for compensation. In this article, we look at the circumstances that may or may not allow you to bring a claim.
The accident must be at least partially the fault of another party
One of the most important aspects of any personal injury compensation claim is proving that another party’s actions caused your accident or injury. For example, if another skier acts dangerously or carelessly on the slopes and causes you injury, you may be able to bring a claim against them – which is most often covered by an insurer.
Who can I bring a snow sports accident claim against?
There are thousands of ways in which you might be injured whilst taking part in snow sports, but the exact circumstances of your accident will determine who you should bring your claim against. You may be able to bring a claim against:
- Another skier – if they act dangerously or carelessly on the slopes.
- Your tour operator – if you booked the excursion as part of a package and they did not properly investigate the health & safety standards of the ski centre or instructor
- The ski centre – if they fail in their health & safety obligations such as upkeep of the slopes, ensuring staff are properly trained, and that guest areas are free from hazards.
- Your ski tutor – where they act carelessly during their instruction or provide you with poor guidance causing you to have an accident.
- The ski lift operator – where they are negligent in their actions operating the ski lift or the ski lift is faulty or poorly maintained.
Making a claim for a skiing accident abroad
Many people travel overseas to visit ski resorts to find the best slopes and snowfall. However, making a claim for an accident or injury caused while overseas may be a bit more complicated. If you booked the trip with a UK tour operator, you might be able to bring a claim against them, which will make the process more straightforward. If you booked directly, you may be able to bring a claim against the ski centre, lift operator, or individual skier. The rules about making a claim differ depending on the local laws of where your accident took place. You should consult a specialist solicitor who will be able to help you.
If you are a landlord of a commercial property, you may find yourself in the circumstances where you need to evict a tenant and take back possession of your property. This area of the law can be complicated – your best route forward will depend on your specific circumstances and the terms of any lease you have in place. In this article, we look at some of the most common reasons for evicting a commercial tenant and what you can do.
What is forfeiture in commercial property?
Forfeiture is the right of a landlord to regain possession of a property where the tenant has breached the terms of the lease. The right of forfeiture must be included in the lease. However, landlords must be careful to establish that a breach has arisen. If a lease is forfeited where the right to forfeit has not been established, the tenant may be able to bring a claim for wrongful forfeiture.
Can I evict a tenant if they have not paid the rent?
In response to the Covid-19 pandemic, the rules around evicting commercial tenants for non-payment of rent have changed. To protect businesses forced to close during the pandemic, the government imposed a moratorium on commercial landlords evicting tenants who were unable to pay their rent until March 2022. In addition, a new code of conduct came into effect on 9 November 2021 and applies to all commercial leases held by businesses with rent arrears caused by the impact of the pandemic. Landlords are encouraged to come to an agreement with tenants about rent arrears rather than begin eviction proceedings.
Regaining possession by forfeiture
If a commercial tenant has not paid rent for the premises, you may be able to regain possession of the property by forfeiture. However, the process can be complicated to understand, and it is essential that you do not take action which may jeopardise your position. We would recommend discussing your specific circumstances with a solicitor before exercising your rights.
Can I evict a tenant if they have breached the terms of their lease?
If your tenants have breached any terms of the lease, you are required to serve a 146 notice before you can take action to reclaim possession of the property. This notice will be served by your solicitor to all relevant parties which includes the tenant, any subtenants, and your mortgage provider. The notice will set out clearly the details of the breach as well as any requirement to take remedial action or to pay compensation.
If the tenant has breached the repair condition clause, you may be required to offer the tenant the opportunity to claim statutory protection. If the tenant decides to do so, they must make this known within 28 days of receiving the 146 notice. The consequence for landlords is that they must seek permission from the court before taking any further actions.
If you are renting your home, it is your landlord’s responsibility to provide heating and hot water. When the heating or boiler fails through no fault of your own, your landlord must repair or replace the boiler or other equipment. Of course, how long this might take or whether the landlord is forthcoming in doing so is a different story. This article looks at the landlord’s obligations to provide heating and hot water and the steps tenants may take where their landlord fails in their obligations.
Does my landlord have to fix the heating?
Under the law, your landlord must provide you with water, gas, electricity and adequate sanitation facilities (toilets). You are also entitled to equipment for heating each occupied room, or central heating and a boiler for hot water.
There are minimum heating standards for each room, which is at least 18°C in bedrooms, and 21°C in living rooms where the outside temperature is -1°C. It is not acceptable to leave tenants without heating for more than a few days without the landlord taking steps to resolve the problem.
Under the Landlord and Tenant Act (1985), your landlord is responsible for any heating repairs, and replacements set out in the act. This cannot be set aside by any other document – including a tenancy agreement.
What should I do if the heating in my rented property is broken?
In the first instance, you should contact your landlord to let them know about the problem via your usual method of communication with them.
You should also keep evidence of your communications and the repair problem – including photos or videos.
My landlord has not responded/taken action. What should I do?
If your landlord has not replied to you after a few days or taken any action to resolve the repair problem, you should chase them up. We would recommend following up with an email or letter so you can set out the issue in full and so that you have a clear record of what has been said. In the letter or email, you should:
- Remind them that they have a responsibility to make repairs
- Set out times when you are available for the repairs to be carried out
- Tell them what action you would like them to take and the standard of repair that would be acceptable to you
- Provide them with a reasonable deadline to respond
Contact the council
If your landlord refuses to make repairs or does not respond to you after several attempts at contact, you should report them to your local council. Each local council has a private renting team, and you should provide them with evidence such as emails, letters or photos. The environmental health team may then arrange an inspection of your home and have the power to order your landlord to carry out repairs.
Renting and repairs: My landlord won’t fix the heating, what can I do? – Solicitors Rotherham
Storm Arwen: Who is responsible for damage and loss in commercial properties? Solicitors Rotherham
With the UK recently hit by Storm Arwen, many businesses have suffered damage and loss. However, if a rented business premises has been damaged, who is responsible for making repairs? What if a premises is no longer fit for use? In this article, we look at storm damage and commercial tenancies.
My business premises was damaged during a storm, what can I do?
Where your business premises are damaged during a storm, this will generally be covered by the landlord’s buildings insurance. However, it is crucial to note that if the property has not been well maintained and damage has occurred over time, the insurer may not be willing to pay out. It is a tenant’s responsibility to inform the landlord of any necessary repairs as soon as they arise to mitigate the possibility of severe damage.
My equipment and stock were damaged during a storm, what can I do?
If your equipment or stock is damaged during a storm, or as a result of damage caused during a storm, this is generally covered by your contents insurance. Generally, any additional fixtures or fittings that you have installed and paid for are your responsibility to repair, replace and insure.
My business cannot operate until storm damage repairs are made, what can I do?
Storm damage can have a huge impact on your business, and you may be unable to operate until repairs are made. You may have a business interruption clause in your insurance policy that will cover these circumstances. However, if you are in dispute with your landlord about making these repairs and you do not have such a policy in place, every day is costing you money. Several options are available to you if your landlord will not make the repairs as set out below.
My landlord is refusing to make repairs following a storm, what can I do?
Commercial leases and repairs obligations are a complex area of the law and a source of many legal disputes. You should seek legal advice on your specific situation from a specialist solicitor who will advise you on the best course of action for your situation.
Self-help
If you make the repairs yourself and deduct the cost from any rent due to the landlord. You mustn’t take this course of action without legal advice.
Court declaration
It is possible to get a declaration from the Court setting out what action the landlord must take or allowing the tenant to take the self-help action outlined above.
Damages
Where the landlord’s delay is costing your business money, you may be able to bring a claim for compensation, known as damages, against them.
Storm Arwen: Who is responsible for damage and loss in commercial properties? Solicitors Rotherham
Christmas miracle undermines confidence – Solicitors Rotherham
Privacy law protects intellectual property as well as celebrity secrets and royal correspondence
A dispute which reached the High Court has highlighted the importance of maintaining commercial confidentiality to avoid sharing intellectual property between competitors.
After being awarded a contract as the exclusive designers of a cable laying vessel, naval architect Salt Ships found itself taken off the project and its designs shared with the replacement designer, who had pitched to complete the work at a lower price.
Salt Ships pointed to the speed at which competitor Vard had supposedly been able to develop the alternative design for purchaser Prysmian, describing it as “the Christmas miracle” as it was completed in less than two weeks, including a Christmas and New Year period.
The Court agreed that Prysmian had acted in breach of confidence when they encouraged Vard to make use of the design work prepared by Salt Ships.
The law relating to breach of confidence is based on the principle that someone should not take unfair advantage of information obtained or given in confidence. It allows individuals or businesses to take civil action to protect private or commercially sensitive information, or governments to protect security interests.
“Breach of confidence often hits the headlines when a celebrity’s phone is hacked, and their personal details or images are leaked to the media or posted online. A high-profile example is the action by the Duchess of Sussex against the press for publishing a private letter she had written to her father in the run-up to her marriage to Prince Harry.
“But it can also be used to protect intellectual property, as in this case,” explained corporate expert Miss Amy Cusworth of Rotherham solicitors Oxley & Coward LLP.
In the ruling, the judge pointed to the considerable cost saving made by Prysmian in transferring the contract, while keeping the benefit of the original design work. He also took into account that Prysmian had obtained an indemnity from Vard in the event of a claim by Salt Ships for infringement of intellectual property rights. Calling the company’s behaviour ‘high handed’, the judge said there was a case for punitive damages when the claim is heard.
Miss Cusworth added: “It is unusual to see damages awarded for more than financial compensation in the English courts, but exemplary damages are likely where wrongful conduct can be seen to generate more profit than any compensation would involve.
“This case demonstrates why purchasers should avoid the temptation to make use of commercially sensitive information and intellectual property belonging to a former supplier, or where it has been developed and shared as part of a tendering process. It’s not just the potential cost of litigation, but also the reputational damage.”
Salt Ship Design AS v Prysmian Powerlink SRL [2021] EWHC 2633 (Comm) (30 September 2021)
Duchess of Sussex v Associated (2021) EWCH 273 (Ch)
Christmas miracle undermines confidence – Solicitors Rotherham
A time for giving? Solicitors Rotherham
Companies reminded of need for safeguards on corporate gifting
Companies and customers are set to miss another year of Christmas parties and corporate entertaining, following the discovery of the Omicron coronavirus variant. But with the expectation that corporate gifting will take its place, businesses need to check they are on top of the rules.
It’s ten years since the Bribery Act was introduced, which sets out how corporate hospitality and gifting must be reasonable and proportionate. And for companies who get it wrong, the costs can be considerable.
Since the introduction of the Act, the Serious Fraud Office has shown an increasingly tough attitude towards tackling corruption and even the smallest companies can feel the force of the Bribery Act if they don’t have the right checks in place.
In the biggest penalty yet seen for a conviction under the legislation, Petrofac has been ordered to pay £77 million in penalties after admitting seven charges of failing to prevent bribery in the Middle East, which saw executives paying £32 million in bribes to help the company secure more than £2.6 billion of oil and gas contracts.
Other companies have paid even larger sums, having reached deferred prosecution agreements with the Serious Fraud Office to avoid conviction.
The legislation sets out how bribery is defined, as giving, or offering a person a financial or other advantage with the intention of inducing them to act improperly or asking or receiving an inducement in return for acting improperly. As well as the individual offences, it makes it an offence to fail to prevent bribery, which means a commercial organisation could find itself guilty of an offence if a connected person – such as an employee or an agent – commits an individual bribery offence.
To avoid prosecution the organisation must be able to show it did not know it was taking place and be able to demonstrate adequate procedures are in place to guard against bribery, including due diligence on individuals.
Said Miss Amy Cusworth, Corporate Expert with Oxley & Coward Solicitors LLP – Solicitors Rotherham: “Even where no contracts are up for grabs in the immediate future, lavish gifting could be interpreted as undue influence. It’s safer to offer something that has a clear business development opportunity for the company – such as a company-branded gift – whereas a case of champagne may not pass the test.”
Miss Cusworth added: “It’s not just about what is gifted, it is also a good idea to remind staff of policies to keep them aware of the importance of protecting the company against claims of undue influence. One way of reinforcing this is by asking them to record anything they receive, whatever its value, and having a threshold for both giving and receiving is a sensible approach.”
A time for giving? Solicitors Rotherham
If you have decided to separate from your partner, there are certain practicalities that you will need to work out together. Even if you are unsure if you will divorce or dissolve your civil partnership, in the interim, you will need certainty about matters such as:
- Where each partner will live
- Arrangements for any children you have together
- How your money and assets will be divided
- Whether both parties can afford to pay their bills if they live separatelyA separation agreement is a document that sets out the terms of your separation, addressing matters such as those listed above. However, negotiating a separation agreement can be challenging, particularly at a highly emotional time for you and your family. In this article, we take a look at some of the most common mistakes to avoid when going through the process of negotiating a separation agreement.
Feeling pressured into an agreement
In many cases, parties can feel pressured into agreeing to terms they are unsure of for the sake of ‘getting it done’. In family relationships, people can often put their emotions before their practical and financial needs, which can cause problems later on. In this situation, having a lawyer to fight for your best interests can be useful. A solicitor will listen to you and what you want from the agreement and negotiate the terms on your behalf.
Failing to consider the longer-term implications
While a separation agreement itself is not legally binding, when you enter divorce proceedings, the court will take into account your previous agreement and arrangements. As a result, it is important that you do not consider the terms of the agreement only as an interim arrangement but also the consequences for you and your family in the long term.
Make the agreement ‘formal’
While it may be simple to come to an informal agreement, if you want to protect your arrangement, you should take steps to ensure that it is formalised and recognised by a judge if you go on to divorce. A judge will normally recognise a separation agreement when the agreement is fair, both parties fully understood what they were agreeing to, and the document has been drafted by a solicitor. Generally, you and your partner’s financial circumstances must be the same as when you entered into the agreement.
Making financial commitments before the agreement is settled
Separation involves a lot of change. However, we would recommend holding off committing to a new rental agreement, mortgage, car finance or any other substantial financial commitment until the terms of the separation are clear. Your partner may have verbally committed to a financial arrangement, but this could be very different to what is set out in a formal document.
The government has unveiled its long-awaited plans for arbitration to handle pandemic-related commercial rent arrears, with a code of conduct that effectively sets the standard for the draft legislation, which is expected to follow through next year.
To protect businesses forced to close during the pandemic, the government imposed a moratorium on commercial landlords evicting tenants who were unable to pay their rent. Alongside, restrictions stopped landlords seizing goods in lieu of rent, and businesses in rent arrears were protected from insolvency proceedings by their landlord.
The new code of conduct came into effect on 9 November 2021 and applies to all commercial leases held by businesses with rent arrears caused by the impact of the pandemic within a ring-fenced period and applies across the United Kingdom.
“This is all focused on supporting the wider economy by encouraging landlords to look at the longer-term benefits. The key takeaway is that landlords are being encouraged to reach a negotiated settlement, rather than issue proceedings, if that will help protect the viability of the tenant’s business,” said corporate law expert Miss Amy Cusworth of Oxley & Coward Solicitors LLP in Rotherham.
“But this isn’t a blank cheque for tenants wanting to withhold rent on commercial premises: if they are able to pay, they are expected to do so. Also, it relates to specific ring-fenced periods and sectors. Where a business was able to continue trading, such as pharmacies, they will not be covered by the proposed legislation, although each situation will be judged on a business-by-business basis, as not all tenants will fit neatly into the sector-related time restrictions outlined in the code.”
Arbitration will apply only to arrears which relate to periods of mandated closure, meaning that where there has been any gap in payment it is important that landlord and tenant are clear about the period that any subsequent rental payment relates to. If a date within the ring-fenced period is not specified for any such payment, then it will be treated as outside the scope of the arbitration process. However, the government is encouraging use of the code by landlords in resolving all rent arrears, whether or not they fall inside the scope for arbitration, rather than by issuing proceedings.
And because the aim is to avoid landlords pursuing tenants through the courts, the draft legislation provides a number of roadblocks on debt claims and petitions for bankruptcy. These include arbitration of any county or high court judgements issued from 10 November 2021 until the bill comes into force, so judgments made in that time for ringfenced debt could subsequently be cancelled by an arbitration award. The draft also prevents landlords from petitioning for bankruptcy of a business tenant in relation to any ring-fenced debt in the same period.
The Commercial Rent (Coronavirus) Bill will formalise the code of conduct by setting out a binding arbitration process for rent arrears accrued during the pandemic where tenants are unable to reach a negotiated agreement with the landlord. To allow time for the legislation to be introduced, protection from eviction for commercial rent arrears will remain in place until 25 March 2022.
As restrictions ease and more and more people return to work, it is essential that employers continue to ensure the workplace is both safe and free from discrimination for all employees. Employers are required to make reasonable adjustments to accommodate employees with a disability to ensure they do not suffer a disadvantage that non-disabled employees do not. In this article, we look at some key matters employers should consider.
What do employers need to consider when looking at reasonable adjustments?
The aim of making reasonable adjustments should be to remove, as far as possible, any substantial disadvantage faced by a disabled worker that a non-disabled worker does not experience. When making decisions about reasonable adjustments, all relevant circumstances should be considered, including:
- How practical the adjustment is
- The cost of the adjustment
- How effective the adjustment would be in reducing the disadvantage experienced by the disabled employee.
- The size of your organisation and its resources
What types of adjustments should employers consider?
Broadly speaking, there are three types of adjustments you may wish to look at.
Changes to policies and procedures
The pandemic has introduced new models of working in most sectors, and many people have spent months working from home. If disabled employees have been working from home and you have found this to be successful, you may wish to consider whether allowing them to continue working from home would be more suitable for their wellbeing. For example, the physical workplace could put their safety at risk if they have been unable to be vaccinated, or they may be nervous about returning.
Adjustments to help disabled employees with physical barriers in the workplace
While your workplace may have been suitable for disabled employees in the past, social distancing measures may mean substantial changes to the layout of your operations. You should ensure that disabled employees are not negatively impacted by things such as access to a temporary office, layout changes that make it difficult for them to move around, or access to disabled toilets or lifts.
Providing extra equipment to help an employee carry out their role
A good example is where a disabled employee finds it easier to work from home. In this case, employers may need to provide equipment to allow them to do so most effectively. For example, providing a laptop or software. Another example is that where you have an employee who is deaf, you should supply their co-workers with transparent face shields, which will allow the employee to lip read.
The most important step employers can take is to actively consider the needs of their disabled employees. Those with a disability may have been disproportionately impacted by the pandemic and the restrictions and could have different needs when returning to the workplace.
Nobody likes to think about a time when they are no longer around and talking to loved ones about what you would like to happen after you pass away may seem morbid or unnecessary. However, talking about financial and practical matters can help put your mind at ease and make things much easier for those closest to you when the inevitable comes. Most people find it difficult to talk about money but Talk Money Week which runs from 8-12th November 2021, is designed to make it easier for everyone.
In this post, we look at how to speak to friends and family about your wishes for the future, covering: what should happen to your property after you pass away, providing for those closest to you, and choosing who should take care of your financial affairs should you lose the capacity to do so yourself.
Starting the conversation
It can be challenging to bring up such serious matters without warning, so you should introduce the topic with a starting point. Perhaps your circumstances have changed, if you have remarried, had children or grandchildren, or moved home, it can be a good time to raise such matters with family members. It will seem more natural. If you are yet to make a will or Power of Attorney, this can also be a great way to introduce the conversation to your loved ones.
Discussing your will
One of the key discussions you will need to have with those closest to you is what should happen to your money and property after you pass away. While your estate may seem straightforward, and perhaps it is even obvious what should happen, wills disputes are common, and you should take steps to prevent such a dispute.
Following a death in the family, emotions are raw, and many families end up in bitter arguments over property. The best way to ensure the distribution of your assets is straightforward – discuss your will and your wishes with your family. Explain why you wish for your property to be distributed as you have set out, and do not be afraid that some people might feel hurt by what you have chosen to do. Wills discussions could even help you decide what is best for your family before you make a will or encourage you to amend your will to provide for your family in a way you never previously considered.
Choosing Executors and Attorneys
An important part of planning for the future is choosing who you would like to be responsible for your affairs after you have lost capacity or passed away.
Attorneys
A Power of Attorney gives someone else the power to make decisions on your behalf after losing the mental capacity to do so for yourself. You should choose a person you trust to be your financial attorney, and you should discuss the role with them in advance and ensure they are able and willing to act for you.
Executors
An executor is responsible for administering your estate after you have passed away. This can be quite an involved and time-consuming role, so it is essential that you discuss it with those who you would like to step in. You can appoint several executors, and you may even wish to appoint a professional such as a solicitor to deal with the more challenging parts of estate administration.
It is ten years since the ending of the national default retirement age, when age became one of the protected characteristics covered by the Equality Act 2010.
The Act was designed to safeguard people in the workplace against discrimination, harassment and victimisation, and figures from the Office of National Statistics show there are now some eight million people in the UK aged 50-64 who are economically active and a further 900,000 who are working past 64.
But behind the headline success of continuing employment for an ageing workforce, the number of claims for age discrimination has risen steeply in the past year.
Analysis of statistics from the Ministry of Justice shows the number of age discrimination complaints taken to employment tribunals during 2020 rose 74%, while the overall number of complaints made to employment tribunals decreased from 183,207 in 2019 to 180,430 in 2020.
One recent Employment Appeal Tribunal decision has highlighted the challenge of age-related employment strategies, with two separate claims of age discrimination by two professors at Oxford University resulting in radically different outcomes, despite apparently identical circumstances involving the same policy under the same employer.
Both Professor Paul Ewart and Professor John Pitcher were each asked to retire at 67, being the university’s mandatory retirement age, and each brought a claim of direct age discrimination and unfair dismissal.
But the individual circumstances saw one professor’s claim upheld while the other had his rejected, in the initial, separate hearings. Both decisions went to appeal, where they were heard as a single, co-joined case. Now, the appeal tribunal has confirmed both original decisions.
In this case, the distinction hinged on the different evidence presented by the two professors.
Despite the ending of the default retirement age, a mandatory retirement age is allowed where an employer can demonstrate that it can be ‘objectively justified’ and will enable a legitimate aim. The employment appeal tribunal set out three legitimate aims where a mandatory retirement age could be justified: inter-generational fairness, succession planning, and equality and diversity.
The first professor presented a survey of retirees which showed that a quarter would have continued for three more years if they had not been forced to retire because of the mandatory retirement age. The second professor’s statistical evidence showed that the rate of vacancies created by the mandatory retirement age was very small.
The figures from the first professor led the tribunal to decide that the mandatory retirement was necessary to provide opportunities for younger academics, while the second professor’s statistics resulted in the tribunal finding that the discriminatory impact of the mandatory retirement age was severe and was not significantly mitigated by the result.
“It’s down to proportionality, and this case shows how important it is to review each individual’s circumstances before requiring mandatory retirement,” explained Miss Amy Cusworth, employment expert with Rotherham solicitors Oxley & Coward LLP.
“While this involved older employees nearing retirement, age discrimination can affect all generations in the workforce, as different circumstances exist in every organisation. It may involve young people who find their lack of experience places them at greater risk of redundancy when times are hard; or a 40-something finding themselves considered ‘past it’ in a very youth-oriented working environment.
“But it is generally the older group who are most likely to suffer financial loss and take action when they lose their job, as it is typically harder for them to find alternative employment, and we have seen this in the figures for recent claims.”
They added: “There are many aspects to diversity in the workplace and making sure that the recruitment process and ongoing opportunities are equally accessible to all is very important.
“That’s not just because it makes for a more positive working environment, but because the financial and reputational loss involved in discrimination claims, where there is no cap on compensation, creates a serious financial imperative”.
If you are considering an at-home fireworks display or perhaps a bonfire, you need to be sure that you do not fall foul of the law. Rules concerning fireworks and bonfires are designed to keep us all safe and to prevent nuisance in the neighbourhood. In this article, we run through some key questions about fireworks, bonfires and the law.
What is the law on buying fireworks?
In order to purchase fireworks in the UK, you must be aged over 18. You can only buy fireworks from a licensed seller. It is possible to buy fireworks at any time of year, but there are two types of fireworks licenses, one of which allows retailers to only sell fireworks at a certain time of year.
For example, most supermarkets only hold a short-term license and so may only sell fireworks for Halloween, Bonfire night and in some cases, Christmas and New Year.
Can I buy fireworks for a wedding?
As discussed above, fireworks are available for sale all year round, but you must find a seller with a long-term licence to buy fireworks outside of the typical season.
Can I set off fireworks in a local park?
No. If you purchase fireworks for personal use, you may only use them on your own private property, or a property where you have the consent of the owner. It is a criminal offence to set off fireworks in a public place and the penalties can be severe. However, if you wish to hold a public display, you can apply to your local authority for permission to do so.
Can I set off fireworks if I rent my property?
You can legally set off fireworks on private land, so if you rent your home and have a private garden, you can potentially set off fireworks. However, you may want to check with your landlord to see if there is anything that may prevent you from doing so contained in your lease.
Is there a curfew for setting off fireworks?
There is no curfew for setting off fireworks, but generally, they must be set off between 7 pm and 11 pm. The informal curfew is typically extended to 1 am at New Year, Lunar New Year and Diwali. However, there may be local bylaws in place so you should check with your local authority.
Can I do anything about nuisance fireworks?
If someone in your area is setting off fireworks late at night or excessively, you can contact the police.
Can I have a garden bonfire?
There are no laws that prevent you from having a bonfire in your garden, but it must not cause a nuisance to other people. The Environmental Protection Act 1990 sets out that a bonfire could cause a statutory nuisance where it occurs regularly and prevents a person from opening windows or enjoying their garden.
Football’s offside rule has been controversial since it was introduced in 1863, with many arguing it remains unintelligible despite attempts at simplification, but the game’s latest rulebook clash may claim the crown when it comes to complexity.
The challenge surrounds the IR35 tax rules and the employment status of elite referees, which has seen a long-running dispute between HMRC and the body responsible for their contracts, the Professional Game Match Officials Ltd (PGMOL).
The legislation covering IR35 was designed to stop contractors working as ‘disguised employees’ and affects all contractors who do not meet HMRC’s definition of self-employment.
HMRC argues that the referees are employed under a contract of service, rather than being self-employed under a contract for services. The IR35 rules are important because whether someone is employed or self-employed will determine the tax and national insurance due by the individual and their client. In this instance there are huge sums involved, with a potential tax bill for the PGMOL of nearly £600,000 if they lose the case.
But assessing whether a contract involves employment or self-employment can be very hard to identify. The situation is made more complicated by the fact that the rules may apply differently to different contracts for the same contractor, so some may fall within the off-payroll working rules and some may not.
In the case of HMRC v Professional Game Match Officials Ltd [2021] the focus has been on the question of ‘mutuality of obligation’, the extent to which the referees and other officials involved could control the arrangements and whether there was an overarching contract of employment. The various officials formed what was known as the ‘National Group’, taking part in the second, third and fourth tiers of English football, FA Cup matches and within the Premier League.
PGMOL argued that no contractual relationship existed, and that match officiating was a hobby with referees managing any match officiating around other paid work and responding on a voluntary basis. HMRC disputed this, arguing that each individual engagement at a particular match was a contract of employment, and part of an overarching contract.
Now, the Court of Appeal has ruled that the First-tier Tribunal and Upper Tribunal both erred in law in their approach, when they decided that the referees and other match day officials were not employees of PGMOL and were performing under contracts for services.
“Although the Court of Appeal has decided that each tribunal took wrong turns in reaching their original decision, the case has been referred back to the tribunal specialists for the final decision, so it will be some time before we see a conclusive result in this case,” explained Miss Amy Cusworth, Partner at Oxley & Coward Solicitors LLP. “In the meantime, this ruling suggests we should review the weight given to criteria such as mutuality and occasionality as it is likely to undermine many current assumptions.”
That’s because many contractors have interpreted IR35 rules as meaning that where they provide their services on an occasional basis, and with no obligation to accept any particular assignment, there is no contract of employment.
Miss Amy Cusworth added: “The Court of Appeal ruling is likely to have implications far beyond the football pitch. Those who believe themselves to be self-employed, and those contracting with them, should review their arrangements and take advice, as it is evident from this long-running case that deciding on any given situation will be highly fact-dependant and every bit as complicated as the offside rule.”
Experiencing unfair treatment in the workplace can be distressing and can have an impact on your life both in and out of work. You may be worried about your financial situation if you leave, your performance at work, or suffer from low self-esteem. However, there are laws to protect employees from such treatment, but you must first understand what type of negative treatment you are experiencing under the law. In this article, we look at what bullying in the workplace is, and what you can do if you are a victim.
What is bullying?
Bullying is where you experience behaviours from a person or group of people that make you feel uncomfortable, frightened, made fun of, or put down.
What are some examples of bullying in the workplace?
Bullying can take many different forms, but typical examples include:
- Someone continually putting you down in meetings or in front of superiors
- Someone spreading rumours about you
- When you are prevented from joining in social events by the rest of your team
- When your boss doesn’t let you attend training or social events but allows everyone else.
Bullying can be a regular pattern of behaviour or a one-off incident and doesn’t necessarily have to happen at the workplace. It is possible to experience bullying at a workplace social event, on social media, by email or phone call or face-to-face.
It is also possible to experience bullying from junior members of staff if you are a more senior employee. This is known as upwards bullying and may include actions such as:
- Refusing to carry out instructions or tasks you have delegated to them
- Spreading rumours about you
- Showing disrespect towards you
- Doing things to make you seem incompetent
What is the difference between bullying and harassment?
Bullying is deemed to be harassment under the law where it is related to a protected characteristic. The protected characteristics are:
- age
- disability
- gender reassignment
- race
- religion or belief
- sex
- sexual orientation
What can I do about bullying in the workplace?
You should speak to those involved in the bullying and explain how the behaviour makes you feel. If you do not wish to speak to them face to face, you could set out the facts in an email. You may also be able to speak to a trade union representative or someone else at work to help you.
Where there is a pattern of bullying, you should try to keep a record. Include details such as:
- The date and time of the incidents
- Evidence such as emails, screenshots or details of any witnesses
- The effects of the bullying such as how it made you feel or any impact on your performance at work
October will see a major milestone in notice periods for residential tenancies where landlords are seeking possession, as they revert to pre-pandemic requirements. But with fears of a tough winter, as gas prices soar and furlough support ends, landlords are being warned to check the latest guidance before taking action, as additional protections for tenants may need to be reinstated.
For now, the Government has confirmed that notice periods for Assured and Assured Shorthold Tenancies will revert to pre-pandemic requirements from 1 October 2021. This suspension of the emergency legislation affects Section 8 and Section 21 notices, where landlords are seeking possession of a property.
Since 1 June 2021, most possession notices have required the landlord to give a minimum of four months’ notice if they serve either a Section 21 or a Section 8 notice, except in some specific cases of anti-social behaviour and rent arrears.
From October, the notice periods for Section 8 Notices will revert to the pre-pandemic notice periods – which vary depending on the grounds on which notice is served – and for Section 21 Notices, the notice period will revert to at least two months’ notice. New prescribed forms must be used for both Section 8 and Section 21 Notices from 1 October 2021.
Said property law expert Amy Cusworth of solicitors Oxley & Coward LLP in Rotherham: “It is important that residential landlords make sure they give the right period of notice and use the correct form. There is no back-dating for notices served before 1 October, so any action taken before October will continue to be under the notice periods in force at that time.”
Amy added: “And while this sees a relaxation of the emergency legislation, if there’s a tough winter in economic terms, or a further surge in Covid-19, there is every chance that the extended notice periods will be re-introduced, so it’s very important to double-check before taking action in the coming months.”
A statement from the Ministry of Housing, Communities and Local Government reflects this, saying that the measures may be re-implemented if the public health situation worsens again, as the legislation which imposed the extended notice periods will remain in force until March 2022 and this is a suspension of, not an end to the emergency legislation.
The notice periods from 1 October 2021:
- Section 21 or Section 8 / 1, 2, 5, 6, 7, 9 or 16 – two months but not before the end of the fixed term
- Section 8 / 8,10,11 on grounds of rent arrears – two weeks
- Section 8 /3, 4, 7b, 12, 13, 14A, 15 or 17 – two weeks
- Section 8 / 7a on grounds of anti-social behaviour with a conviction – one calendar month
- Section 8 / 14 anti-social behaviour – immediately after the notice counts as served, usually 24 hours
A judicial decision has seen the late Duke of Edinburgh’s will sealed for 90 years, and the value of the estate excluded from the grant of probate. The ruling highlights an often-overlooked fact, which is that a will, setting out how an individual wishes to pass on their assets, will generally become a public document after death.
This demonstrates the importance of discussing your intentions with your family when making a will to avoid later challenges, as the document may be read by anyone with an interest in the estate, and the need to exclude confidential information from the will.
“This is an issue not just for high profile individuals like the Prince,” explained wills and trusts expert Mrs Jayne Jackson, Partner of Rotherham-based solicitors Oxley & Coward Solicitors LLP. “But while an application can be made to keep the contents private, it needs the court to agree that publication would be undesirable, and that’s not likely to happen in most instances.”
The grant of probate is made by a court, following an application by those acting as executors of an estate, and gives the necessary permission for the assets to be distributed according to the wishes of the person who made the will. At this point, the will usually becomes a public document.
If a partner or family member feels they have not received what’s known as ‘reasonable provision’ in a will, they can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Any claims must be made within six months of the date of the grant of probate and should ideally be made before the estate has been distributed. In the case of a couple who were not married or in a civil partnership, the survivor would have to show they were living together throughout the two years before the death.
Added Mrs Jackson: “It’s best to avoid nasty surprises and potential claims on the estate by discussing your intentions when you draft your will. Dealing with a contested will can be an expensive process and far better to have that conversation now, than to leave it to your family to sort out after you have gone.
“It’s also important to avoid giving confidential information away in the will. For example, setting out bank account details could lead to fraud and this sort of information should instead be put into a side letter and placed with the will, or by using one of the other digitally-secure options that have become available, which allow assets to be accessed by those administering the estate without releasing the information further.”
Wills of the royal family were first sealed in the early 20th century but as these applications were heard in private, there was no record of the decision. In considering the application for Prince Philip’s will, Sir Andrew McFarlane, president of the High Court’s Family Division, has published his decision so as to provide legal and historical context as a framework for future applications.
His decision also sets out that previously granted orders sealing the wills of 30 other senior royals should be in place for 90 years rather than indefinitely. Even though they may remain private after that time, after 90 years the wills will be un-sealed and inspected in private, so the court can decide.
The tradition of sealing royal wills started in 1910 after the death of Prince Francis of Teck, who left valuable family jewellery to his lover, leading his sister Queen Mary, to seek a solution that would avoid news of the gift being made public.
When it comes to starting a business, one of the most challenging but interesting tasks you must carry out is finding the right name. However, many people do not realise that there are restrictions on what you can name your business.
In the last two years, Companies House rejected more than 800 company name registrations on the grounds that they are ‘potentially offensive’ including names such as Building That Fought Hitler Limited, Cambridge Cannabis Club Limited, Fancy a Bomb Ltd, and Fit as Fork Ltd. In this article, we look at the restrictions on what you can name your company to ensure your new venture gets off to a flying start.
Company names must be unique
Every company registered in the UK must have a unique name. You should conduct thorough research online into any similar names that are registered with Companies House, using the name availability checker. It is not enough to simply change punctuation; it is important that your name is unique so as not to cause confusion to the public.
Should I use ‘Limited’ or ‘Ltd.’?
All private companies limited by shares must have ‘Limited’ or ‘Ltd.’ in their company name. Which you choose is up to you and it makes no legal or practical difference which one you use.
Potentially offensive words and phrases
In response to the news that more than 800 potentially offensive names had been rejected, a Companies House spokesperson said it was important that the register was not being abused by recording offensive names. Company names must not include offensive words or be phrased in such a way that may cause offense. However, you may be able to have the name approved if you can show justification for using the name, otherwise you may have to come up with a different name unlikely to cause offense.
Sensitive words and expressions
In addition to offensive words, there are 134 sensitive words and expressions that you need approval from the secretary of state in the UK Department for Business, Energy and Industrial Strategy to use in a company. Examples of such words and expressions include British, commission, licensing, inspectorate, parliamentary, standards and Windsor.
Guidance is also given on words and expressions that could imply a connection with a government department, a devolved administration or a local or specified public authority.
Criminal offences
It is a criminal offence to use certain words and expressions in your company name where you do not meet the criteria for doing so. For example, the words solicitor, surgeon, architect, building society, and even apothecary all have very specific requirements to prevent fraud and abuse.
Leaving gifts to charity in your will – Solicitors Rotherham
The International Day of Charity takes place annually on 5 September, but did you know that one of the best ways to support a charity is to leave them a gift in your will? Many charities in the UK rely on donations left behind by their supporters, and any gift you leave could make a vital difference to the work of the organisation. There are many benefits to leaving money to a charity for your estate too, including tax relief. In this article, we look at some of the most common questions people have about leaving money to charity in their will.
How can I leave money to charity in my will?
Generally speaking, there are two ways to leave money to charity in your will.
The first option is to very simply, specify any charities you wish to benefit from your will. Alternatively, you can leave money or property in a trust and leave it up to your trustees to decide.
Where you choose to name a specific charity, it is always best to include the charity number. Many charities have quite similar names, or the name of the charity may change, and you want to be sure your gift goes to where it was intended.
If you choose to let the trustees decide where your money goes, you may wish to leave instructions to help guide them.
What can I leave to charity in my will?
You have several options for what to leave a charity in your will, and you may wish to consider what might benefit them the most. Your gift may be:
- A cash amount
- A specific property or asset
- Your residuary estate or a share in your residuary estate (your residuary estate is what is left after other specified gifts, costs, and tax).
Is it possible for family members to object to a gift left to charity in my will?
Under the Inheritance Act, you must make reasonable provision in your will for any dependants that you have. If your will fails to provide, a family member can contest any charitable gift in order to obtain the financial provision they are entitled to under the law.
Alternatively, it is possible for a family member to contest the will on the grounds that you were under undue influence or not of sound mind when you made the gift.
Do I need to pay tax on charitable gifts in my will?
Any gift left to a UK charity is free of inheritance tax liability. However, if you wish to make a gift to a charity outside the UK, the situation is more complex. Not only are charitable gifts tax-free but leaving gifts to charity in your will could mitigate your tax liability overall. When you leave at least 10% of your estate to charity, the inheritance tax liability of the rest of your estate falls to 36%.
Leaving gifts to charity in your will – Solicitors Rotherham
Getting to the root of the problem in boundary disputes
Householders spending more time at home and in their gardens during the Covid-19 pandemic is fuelling a rise in boundary disputes as infrequent niggles have translated into nagging complaints, with overhanging branches, encroaching tree roots and towering hedges proving to be a major source of disagreement.
But when it comes to overhanging branches, and fruit falling into a neighbour’s garden, there’s not always a clear-cut answer, even where it poses a health threat.
Various protections may impact the right to trim back overhanging branches from a neighbour’s trees, even when they extend over a boundary. And where trees are in a conservation area, or are covered by a tree preservation order, known as a TPO, even the owner will require council consent to prune or fell them.
In one case being heard by the courts, a Surrey homeowner is claiming that an apple tree has made her a ‘prisoner in her own home’, arguing that when the fruit falls and decays it attracts wasps, and she is allergic to their sting. Her actions to cut back the tree without agreement have given rise to a long and bitter dispute, with legal costs now standing at £200,000 amid claims of trespass, harassment and obstruction.
In another, in Norfolk, a mother has been unable to convince the local authority to let her cut back an overhanging walnut tree, despite her daughter having a severe nut allergy. For mother Chantel Beck, the walnut tree poses the threat of anaphylactic shock for her six-year-old daughter Beau, and while she was granted permission to trim the tree back in 2018, when this lapsed and she had not taken action, her re-application was unsuccessful. The council said that the works could affect the health of the tree, and that they were considering protecting it with a TPO.
As well as overhanging branches, tree roots may also pose a problem for neighbour relations as trees which are allowed to grow unchecked, or too close to buildings, can damage foundations and cause subsidence.
Hedges can be equally divisive, particularly when it comes to the notoriously fast-growing leylandii. If a hedge, or a row of trees, grows more than 2m tall and affects enjoyment of a property, the owner can be asked to trim it back.
When a problem has been identified, such as hedge height, overhanging branches or problem roots, and a neighbour refuses to act, the next step is usually to ask the local authority to intervene, and legal action after that. If tree roots are threatening foundations, then the tree owner could be liable to pay for any remedial works, but only once they have been put on notice to act.
Amy Cusworth of Oxley & Coward Solicitors LLP commented: “It’s inevitable that more time spent at home will have seen more people looking at their environment and picking up on things which may have passed unnoticed before, but the best approach to boundary disputes is a restrained discussion to discuss the problem and if that doesn’t resolve the matter consider mediation before rushing to the courts. It’s all too easy to let these disputes escalate into a personal battle, which can have more impact on enjoyment of your property than the original problem. You still have to live alongside that neighbour, and nowadays you have to declare any dispute when you come to sell a property.”
They added: “Even though you are allowed to trim branches or roots up to the property boundary, it’s still best to have a chat first. And if you live in a conservation area, or where trees are protected by preservation orders, then you need to speak to the council before you start pruning. If you don’t, you could find yourself facing legal action for damage to property, even if there is an obvious nuisance. If you don’t feel able to have that conversation, then call in a professional to act as an intermediary with your neighbour, or with the local authority.”
The dream of a tropical paradise became a nightmare, and a long-running legal battle, for one holidaymaker after she was subjected to a violent assault by a member of the hotel’s maintenance staff.
But now, eleven years on, the Supreme Court has handed down its ruling, supporting the victim’s claim and clarifying the responsibilities of tour operators for the actions of an employee of a service provider, in a judgement that has far-reaching implications.
Package tour operators have an obligation to make sure that the providers they use are up to standard. If someone on a package trip is involved in an accident or injury through the negligence of the hotel or any other service provider in the package, the holidaymaker may be entitled to make a claim on the tour operator.
This long-running case involved luxury operator Kuoni and a British holidaymaker who suffered a traumatising sexual assault at the hands of a hotel staff member at an upmarket hotel at a spot known as Paradise Island, just off the western coast of Sri Lanka.
The anonymous holidaymaker, known as Mrs X, brought a claim for damages against Kuoni under Regulation 15 of the 1992 Package Travel Regulations, holding the tour operator responsible for the proper performance of the package holiday contract, irrespective of whether those obligations were met by Kuoni directly or by a local supplier of services.
Kuoni defended the claim by arguing the actions of the maintenance employee were not part of the holiday arrangements and nor was the employee a ‘supplier of services’, and so they could not be held liable. They also argued that any improper performance was due to an event which neither they, nor the hotel could have foreseen or forestalled.
Explained Richard Sheppard personal injury lawyer of Oxley & Coward Solicitors LLP. “This was a traumatising attack by a hotel employee, wearing the uniform of the hotel, and recognised by the holidaymaker as one of the maintenance staff from previous encounters.
“Kuoni’s argument hinged on making a distinction between the hotel, as supplier of services, and their employees, which had wide implications beyond the specifics of this case, such as where a tour bus driver, employed by a local travel provider, is negligent and causes a road traffic accident, resulting in personal injury. Each successive judgement and appeal have shown the complexity of the case.”
When the case reached the Supreme Court, it was referred to the European Court of Justice for guidance on interpretation of the consumer protection underpinning the EU’s Package Travel Directive 1990, which was enacted in the UK as the 1992 Package Travel Regulations. Having received that guidance, and deciding in favour of Mrs X, the Supreme Court’s judgement has significant implications for tour operators.
The guidance from the European Court of Justice highlighted the limited circumstances in which tour operators might avoid liability, where improper performance of the package holiday contract was due to actions by the consumer themselves, or by an unconnected third party, or a force majeure or event which could not be foreseen.
Richard Sheppard added: “This Supreme Court ruling provides some reassurance for travellers looking to claim against operators for injuries sustained through the actions of employees of local suppliers”.
The Package Travel Regulations 1992 have since been replaced by the Package Travel and Linked Travel Arrangements Regulations 2018 and apply when the whole trip has been booked through a company based in England and Wales.
Guidance covering common holiday problems is available from the Foreign & Commonwealth Office at Know Before You Go.
X v Kuoni Travel Ltd [2021] UKSC 34
The easing of overseas travel restrictions is posing an unexpected headache for employers, who need to be on the look-out for potential digital nomads in their home-working workforce.
The opportunity to be wholly mobile and work from anywhere, when an internet connection is the only tether to the workplace, means many may be considering an extended trip overseas. And as requests may not be made openly, organisations need to decide where they stand on the idea, identify the pitfalls, and get a policy communicated to staff, so there’s no confusion.
That’s because working overseas could give rise to a range of issues for an employer, whether the plans are to make a long-term visit to Europe, or one of the countries which have introduced new visa schemes for extended visits, such as the Cayman Islands and Barbados in the Caribbean or Dubai in the Middle East.
Some of the problems which may impact on employers range from working visa requirements, breach of insurance terms, invalidation of health cover, through to data protection violations. It may also cause internal discontent if not tackled, for example if some workers are required to attend the workplace and so are unable to access the same options as their home-working colleagues.
Key questions that need to be answered include:
- Can the employee legally work in the host country? Following Brexit, individuals may need relevant immigration permissions from the host country.
- Will the employee become subject to local laws and employment protections?
- Can a safe working environment be maintained? As well as responsibility under UK law, employers may find local health and safety requirements apply, such as providing specific equipment.
- Will there be any tax and national insurance implications for the individual? Even when UK based PAYE / NI is being deducted, local taxes could arise in the host country.
- Could it create a taxable presence for the employer in the host country, resulting in corporate taxes being due on locally generated profits? This will depend on local rules, and the individual’s role.
- Is compliance an issue under data protection laws, for both the UK and the host country? Remote working from a different geographic location could impact on personal data processing, or the host country may have different requirements.
The other general consideration for overseas travel is whether employers are going to require staff to avoid countries with high levels of Covid-19 which may require self-isolation or hotel quarantine on return, which could impact on their availability to fulfil their role.
“If there is nothing to hold someone at home, such as family commitments, the temptation may be to take a longer trip and work remotely, in a place where they can enjoy the sun or a change of scenery, rather than viewing overseas travel purely as a holiday break,” explained Employment law expert Amy Cusworth of Oxley & Coward Solicitors in Rotherham.
“It’s worth getting advice on all the potential issues before deciding whether to let staff turn themselves into digital nomads, and it’s important to have a clear policy for all overseas travel while the pandemic continues around the world, for however long, and get the message out to all staff so they are clear about their position.”
It is possible to make a Power of Attorney online, but whether you should is an entirely different matter. The process of making a Power of Attorney seems straightforward, but for those who are unfamiliar with the process, there are many potential pitfalls which could result in your application being rejected or your wishes not being carried out correctly. In this article, we look at some of the common difficulties we see when clients attempt to make a Power of Attorney online.
How do I make a Power of Attorney online?
There are many ways to make a Power of Attorney online, with a variety of businesses looking to provide the service. It can be difficult to know whether these businesses are legitimate, and the level of service and assistance offered varies greatly.
For a Power of Attorney to be valid, it must be signed by any attorneys nominated as well as witnesses. The Power of Attorney must also be registered with the Office of the Public Guardian otherwise it will not be valid.
Why use a solicitor to set up a Power of Attorney?
When you use a solicitor to set up your Power of Attorney, you can be confident that it will be set up correctly and tailored to meet your needs and circumstances.
Your solicitor will not only set up the Power of Attorney but can also provide you with essential advice.
For example, they can help you decide who you should appoint as your attorney, ensure that they are willing and able to act, and understand their duties and obligations as an attorney.
Your solicitor can also help you to set out clearly how your Power of Attorney should operate. Can attorneys make decisions alone, or must they make decisions jointly with others? How should the Power of Attorney operate if assets are owned jointly or held abroad? Do you need a separate power of attorney to cover your business interests? These are just some of the questions that may arise during discussions with a solicitor that are often overlooked when people attempt to set up a Power of Attorney using an online service.
You may also wish to set out your wishes for how your affairs should be managed; a solicitor will help you to express any wishes you have clearly. They can also advise on how these should be set out to ensure that all eventualities are covered, and your wishes can be carried out.
Your solicitor will explain the effects of a Power of Attorney to you clearly to ensure that you understand, which can prevent the validity of the Power of Attorney from being challenged at a later date. They can also advise you on any additional steps you may wish to take, such as revising your will or inheritance tax planning.
As part of inheritance tax planning, or simply as part of passing on wealth to the next generation, you may consider gifting money or property to family or friends. However, there are several things you need to know about gifting and inheritance tax. In this article, we give a brief overview of gifting and inheritance tax, including who you can gift to, how much you can gift, and what it means if you continue to benefit from the gift.
Giving away money or property to avoid inheritance tax
One of the easiest ways to mitigate your inheritance tax liability is to gift money (or property) to friends, family, or charity while you are still living. There are some gifts you can give in your lifetime which will not incur tax after your death, including gifts to your spouse or civil partner. If you make a gift seven years before your death, it will usually be excluded from the value of your estate for inheritance tax purposes. Gifting can be a complex area, so you should speak to a solicitor about gifts as part of the estate planning process.
Who can I give gifts to and avoid inheritance tax?
Gifts to your spouse or civil partner are usually tax-free, however, this does not apply to unmarried partners or cohabitants.
If you wish to leave gifts to other family members or friends, you should put some planning into the process to determine the most tax-efficient way to do this. There is an annual exemption for inheritance tax of up to £3,000 each year you are alive. You can roll over your exemption amount for up to one year. So, for example, if you do not use any of your allowance in 2021, you can gift up to £6,000 in 2022.
Small gifts
You can give small gifts of up to £250 per person, such as for birthdays or Christmas presents, unless another exemption has been used for the same person.
Wedding gifts
There is also an exemption for wedding gifts, with how much you can gift dependent on your relation to the couple getting married. If you are a parent, you can gift up to £5,000, if you are a grandparent or great-grandparent you can gift up to £2,500, and for everyone else, the exemption threshold is £1000.
Retained benefit
You cannot gift someone something if you will still benefit from the gift in your lifetime. The most common example is where a parent gifts their home to their child but continue to live in the property rent-free until they die. When this is the case, the property will still form part of the estate in the event of death.
The world of social media can often seem like the wild west of the internet. Everyone has simple access to an audience and can share anything they wish. In a matter of minutes, a post can go viral, spreading a message or causing damage to a brand’s reputation. While the dos and don’ts of social media are far too extensive to cover in a blog post, in this quick guide, we point you in the direction of some things you should be aware of.
Offensive posts
Contrary to popular belief, you cannot simply post whatever you wish on social media. Many social media platforms have built-in monitoring algorithms to prevent offensive posts. When you sign up to a platform, you are agreeing to abide by their ‘community rules’. If you break these rules, you could have your account suspended and, in some cases, further action might be taken.
Can I be prosecuted for an offensive post?
The Crown Prosecution Service (CPS) has outlined that in order to face charges for a social media post, the post must amount to a credible threat of violence, be a targeted campaign of harassment against an individual or breach a court order.
Can my employer dismiss me over a social media post?
Prosecution is not the only concern. Employees in the UK can face disciplinary action or even be dismissed from their job if they post inappropriate content on social media. Many employers have a social media policy that clearly sets out employees’ expectations on social media. Generally, any comments that damage the brand’s reputation, including comments about customers or the business, could be grounds for dismissal.
Reviews
Reviews can help us decide where we want to go and the businesses we choose to buy from, but leaving a false review could see you end up in court. Negative reviews can be incredibly damaging for businesses, and if the statements in such a review turn out to be false, the business could take legal action against the person who posted the review.
Ads, gifts and sponsorship
Ever noticed some influencer posts that include #AD? Declaring ads is the law, but it applies to more than you might think. If you have received a product, service, meal or trip for free, you must declare it as an ‘AD’ in your social media post – even if you are not an influencer. You can find out more information here.
Sharing private images without consent
It is a criminal offence to share, retweet, forward or otherwise pass on a private sexual photograph or film without consent. The UK Government has created a comprehensive campaign to make the public aware of this offence, and you can find out more information here.
Social Media Copy
As part of Social Media Day on the 30th of June, we share some laws you might not be aware of when sharing on social media.
Unsure of whether you can share something online? Read our quick guide to some things you need to know.
Links:
https://www.asa.org.uk/advice-online/recognising-ads-social-media.html
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/405286/revenge-porn-factsheet.pdf
‘May the force be with you’ is usually the concern of Jedi knights heading to battle in Star Wars, rather than something that company directors look for. But for those companies looking to claim that the coronavirus pandemic has given rise to circumstances beyond their control in delivering on contracts, it is a ‘force’ of a different sort that is concentrating minds.
In one of the few cases to consider the impact of the pandemic on company contracts to date, the High Court has ruled that a force majeure event took place when a Drain Doctor franchisee needed to self-isolate due to the risk of Covid-19 on his vulnerable child.
A force majeure clause in a contract can excuse one or both parties from their obligations – without being liable for any failure to perform – if acts, events or circumstances occur which are beyond their control, such as a natural disaster or a state of war.
In the case of Dwyer (UK) Franchising Ltd v Fredbar Ltd & Bartlett, the franchise agreement contained a clause for suspension during any period that either party was prevented or hindered from complying with their obligations by any cause designated as force majeure by the franchisor.
When Fredbar asked to invoke the clause as work levels were reduced and he needed to self-isolate, Dwyer (UK) argued that plumbing services could still be provided during lockdown and a drop in demand was insufficient grounds for force majeure. When the franchisee terminated the agreement, arguing Dwyer (UK) had failed to meet its obligations, the company retaliated by initiating legal action, claiming damages.
In assessing the case, the High Court drew on what is known as the Braganza duty, from the 2015 case of Braganaza v BP Shipping, which saw the Supreme Court rule that a unilateral power to call a force majeure event must be exercised ‘honestly, in good faith and genuinely’.
In this case, the judge ruled that Dwyer (UK) were in breach of the Braganza duty in refusing to agree force majeure, as they had failed to consider all the relevant factors. These extended beyond the general situation regarding plumbing services during the pandemic and included the importance of family welfare and the franchisee’s need to isolate to protect his son, who was in a vulnerable category for Covid purposes.
“The ruling reflects the specific facts of this case and the wording of the force majeure clause. But while the wording of Drain Doctor’s clause was not typical, it is an interesting outcome for anyone currently pursuing action on these grounds in relation to the pandemic. However, each case will hang on individual circumstances and the wording of the particular contract concerned,” explained Amy Cusworth, contracts expert with Oxley & Coward Solicitors LLP, Rotherham.
She added: “The past year has taken us all into unchartered territory, demonstrating how the unexpected can, and does, happen. This is why it is so important to have well drafted contracts, as having clear terms in place can make all the difference. And because the concept of force majeure is derived from civil law, and not fully recognised under English common law, it should always be fully and clearly defined in a contract.”
Dwyer (UK) Franchising Ltd v Fredbar Ltd & Bartlett [2021] EWHC 1218 (Ch).
Braganza v BP Shipping Ltd [2015] UKSC 17; [2015] 1 WLR 1661
Companies anticipating a return to the workplace in June, if the Government’s route map stays on track, should be planning how to protect workers and customers once the country is released from the current Covid-related restrictions.
Although the Government may decide that it is safe to relax regulations and recommendations around social distancing and large groups, the virus will still be circulating, and individuals could become infected or pass the virus on to others in the workplace.
Planning ahead and involving staff in the planning process is the best approach. By consulting and understanding worries around managing coronavirus, strategies can be developed, and workers reassured about how they will be kept safe, and how, in turn, they can keep others safe.
Said Amy Cusworth, Employment Expert in Rotherham with Oxley & Coward Solicitors LLP: “Asking staff if they have any concerns and taking action to address those, will help to create a positive environment for people to return to work and encourage everyone to play their part in helping to operate your business safely.”
Under the Health and Safety at Work Act 1974 employers must take steps to protect employees, whether in the workplace or acting offsite in a work capacity. And all employers who have five or more in their workforce must have a written health and safety policy and make it available to employees.
Amy Cusworth, Employment Expert in Rotherham added: “These are statutory duties and apply whether we are in a pandemic or not. The responsibilities are even more important in the current situation, and it’s sensible to take a structured approach, even if you have fewer than five staff.”
The Health and Safety Executive (HSE), the government body in charge of enforcing responsibilities, has developed a range of information for employers on how to make the workplace safe and protect staff as they return to the workplace.
As well as ensuring staff are safe within their place of employment, staff must be protected also when travelling on business. Ignoring this aspect could expose an employer to a potential compensation claim if an employee were to contract Covid-19 while travelling for work purposes.
“There should be a documented risk assessment for each trip, and travel options should be chosen carefully to provide the safest possible environment, such as ensuring accommodation is being thoroughly cleaned, or responding to employee concerns about using public transport,” explained Miss Cusworth.
“Employees need to have safety at the forefront of their daily activities and be aware of how they can protect themselves, their fellow workers and customers. Robust health and safety policies, regularly reviewed and properly implemented, are essential, and provide a strong defence if anything unfortunate should happen, whether to deal with coronavirus or otherwise.”
Mental wellbeing should also be high on the agenda according to the Health and Safety Executive (HSE), which has developed a Talking toolkit as a resource for employers to handle work-related stress. Further support is available via the Mental Health at Work charity.
If you are looking to move your business, there is an important decision to be made around whether you should buy or rent premises. There are several factors you should consider and making the right decision can be challenging. In this article, we look at the pros and cons of each to give you an idea of what you may wish to think about or discuss with your adviser.
The pros and cons of buying a commercial property
Potential investment opportunity
Firstly, like with any property purchase, buying a commercial property could be seen as an investment. The property may increase in value, and when you own your business premises, you can profit from this increase instead of your landlord. You can also offset the interest paid on the mortgage against your net profits.
However, you will need a large deposit to secure the property – often around 20-30% of the purchase price – which may not be viable for smaller businesses. It is unlikely, but possible, that the property could decrease in value too, which could mean that you owe your lender more than the property is worth. Investing in property is always a risk, so you should consider carefully before deciding to buy.
Planning your business’s financial future
Another key benefit is that you can plan better for your costs. With a commercial property, you may be able to fix your mortgage payments for up to ten years. However, when you rent, you may be subject to rent increases making it harder to create business projections. It can also make doing business more difficult where you are operating on tight margins. A large rent increase could even make your operation no longer viable.
On the other hand, if you have a variable rate mortgage on the property, payments can rise by a significant amount, so this may not be as much of an advantage as you might think.
Option to sell
Although you can fix your mortgage payments for a long period, you may find that your business premises need to change or are no longer fit for purpose. If you own your commercial premises, you can sell whenever you want. However, if you are renting, you may be tied into a lease that can be tricky. Some commercial premises have lease terms of up to 15 years, which may not work for your business.
Making necessary changes to the premises
When you own your business premises, it allows you to make any changes to the property that you see fit. Making such changes can be crucial to business operations, and this freedom should be a key consideration when you are thinking about buying or renting a commercial property. You can also sub-let all or part of the building, which is often not possible when you are renting.
You may, of course, be able to make changes if you rent a property, but this will be subject to obtaining the landlord’s permission.
The pros and cons of renting a commercial property
For most, the biggest disadvantage of a rented property is that paying rent will never offer a return. You won’t benefit from any increase in the property’s value, and it can feel like money wasted. However, there are many benefits to renting too.
Faster and more straightforward
Typically, the process of getting into a rented commercial property is much quicker and more straightforward. You can cut out the process of securing a mortgage and conveyancing, allowing you to relocate quickly.
No large deposit required
Similarly, you won’t need to save up a large deposit to rent a property, making getting new premises easier for smaller businesses. If your business has good cash flow, you could end up renting a great space you could never afford to buy, boosting the image of your business.
Subject to lease conditions
There are of course disadvantages to renting, mainly that you will be subject to the conditions of your landlord. You may need to pay for repairs where you are on a ‘full repairing’ lease, and any changes you make could add value to your landlord’s property at the expense of your business.
Speak to an advisor
Whether you choose to buy or rent a commercial property will depend on your specific needs and circumstances. You should seek advice from an experienced commercial property solicitor who can explain your options to you.
Marriage breakdowns could head for their own lockdown
The easing of lockdown may have been the catalyst for the announcement by billionaire Bill Gates and his wife that they were heading for divorce and separate lives, with data from Google showing a surge in searches for divorce guidance as restrictions were relaxed.
But while Bill and Melinda reportedly reached a financial settlement agreement before making their news public, with Gates transferring shares worth $2.4 billion to his estranged wife, this clear-cut route may be closed to those who are less well off.
That’s because financial hardships, the potential of recession and uncertain work security may be causing those in rocky relationships to hold on longer, if they cannot afford to part.
A research project investigating cross-national Google Trends search data has explored whether searches for words related to fertility, relationship formation, and relationship dissolution changed during lockdown.
And the authors highlight how “economic instability increases financial and psychological stress for couples, which increases risk of separation and divorce” but highlight the challenge whereby with the “considerable financial costs of separation and divorce …. couples might be ‘priced out’ of being able to separate during financially unstable or uncertain times.”
Their paper points to evidence from the 2008 recession, which saw couples putting off divorcing, while the impact of recession on relationships is borne out by research in the UK from relationship support charity Relate. They reviewed a sample of 20,000 couples in the UK who were affected by the economic downturn from 2009 to 2012 and the findings show that people who suffered negative impacts of the recession were considerably more likely to have experienced deterioration in their relationship quality and stability.
Figures show that searches for divorce have hit record levels since January this year. Typically, enquiries, both online and directly to lawyers, peak in the first week of the year, but in 2021 online searches were 20% higher than the previous January. The first quarter continued to show a number of spikes, where search requests were up to 30% higher than two years ago.
“Current economic conditions are putting couples in a very difficult, catch-22 situation,” said family law expert Colin Musgrave of Rotherham Town-based solicitors Oxley & Coward Solicitors LLP. “Dealing with the emotional challenge of lockdown combined with financial difficulties has put a huge strain on many relationships, that may otherwise have weathered through, but a couple may then find themselves in a position where they cannot afford to part, set up and run two homes. It’s really tough.”
He added: “It’s worth thinking about getting some independent support, as someone with specialist knowledge and skills to mediate may show options and routes that would not have occurred to couples, particularly when they are caught in the middle of it.”
While younger couples, particularly those with dependent children, may be hard hit, it’s a different picture for many older couples. In the UK, while divorce rates overall have been steadily falling, the numbers have been rising in those aged over 65, like Bill Gates. “Known as the ‘silver splitters’ they are often in a more secure economic position and may feel confident in taking the step,” added Mr Musgrave.
While it may not help those who are restrained by their finances, it is expected that no-fault divorce without a period of separation will finally arrive this autumn. The Divorce, Dissolution and Separation Act 2020 received Royal Assent in July 2020, marking a landmark in divorce reform with the biggest change since 1969. Currently, couples must prove fault, or else wait for at least two years if both parties agree, or five years if only one party agrees.
Mr Musgrave added: “The new legislation has been long-awaited to end the so-called ‘blame game’ of divorce which requires couples to give a reason for the breakdown. Couples will even be able to make a joint application when it comes into force, rather than one having to take the lead as now.”
Divorce, Dissolution and Separation Act 2020
As a result of the coronavirus pandemic, the way we work and live has been forever changed. Many people have enjoyed the flexibility of working from home, including avoiding a commute, setting their own hours and taking care of their children.
Employers can expect to see more employees requesting new and flexible working patterns when we ‘return to normal’, so in this article, we look at some of the most common questions around flexible working.
Who can request flexible working?
Employees with 26 weeks’ continuous service are normally entitled to request flexible working, regardless of whether they work full-time or part-time. However, if an employee has already made a flexible working request, they cannot make another request for 12 months.
Furthermore, workers (that is, anyone who is not an employee) cannot request to work flexibly. For example, agency workers, self-employed contractors, consultants, and company directors will be excluded if they do not have a contract of employment.
In what ways can an employee work flexibly?
The term flexible working covers several ways of working. Employees may ask for changes to working hours, their work location (such as working from home), or the times they work.
Is there a process that must be followed to request flexible working?
There is no specific procedure, but employers must consider any request for flexible working in a ‘reasonable manner’. Unless otherwise agreed by the employee, the employer must reach a decision about a flexible working request within three months.
Does an employer have to allow employees to work flexibly?
In short, no – but they must consider any request to work flexibly in a reasonable way. An employer may only refuse a request for flexible working for a specific business reason; these are set out in legislation as:
- Unacceptable additional costs.
- An inability to recruit additional staff.
- A negative impact on quality of work.
- An inability to reorganise work among existing staff.
- A negative impact on the ability to meet customer demand.
- A negative impact on the performance of the employee, the team or the whole business.
- Insufficient work available to do during the periods the employee proposes to work.
- Structural changes to the business that have already been planned that would not fit with the employee’s proposal.
Furthermore, recent tribunal decisions have highlighted that it is not unreasonable to put the interests of the business before the interests of an employee when making a decision about a flexible working request.
Can an employer allow some employees to work flexibly but not others?
Each flexible working request must be considered on its own merits, meaning that some requests may be approved, and some denied. You can decline a flexible working request where there is good business reason for doing so, including that too many employees are working flexibly at the same time. For example, if several employees from one department request to work from home at the same time, there may be no one around to cover certain tasks during business hours.
However, it may be better to discuss such conflicts with employees rather than to refuse the request. For example, suggest different working patterns or taking turns to ensure the business can run smoothly while accommodating flexible working patterns.
Carrying the weight of unpaid invoices can make doing business challenging. The coronavirus pandemic has caused financial difficulties for many and could be making the problem of late payments worse for both small businesses, the self-employed and freelancers.
The Forum of Private Business indicates that 1 in 4 businesses fall into insolvency as a result of late payment of invoices. While business owners need to worry about paying suppliers, staff members, rent and bills, unpaid invoices can have serious consequences. For freelancers, invoices are direct income and going unpaid can mean getting into personal financial difficulty. With this being the case, can you really afford to wait?
This post looks at five ways you can manage debt recovery and payment procedures in your business.
1. Clear payment terms
From the outset, your clients should know when they are expected to pay you. However, this means setting out in unambiguous terms the work you are doing, when that work will be completed, the cost and when you will raise an invoice for the work. Once you have established a process, draft a document and include it in your terms of work. Such a clearly drafted document can help to avoid disputes and delayed payments.
2. Invoice on time
This may seem simple, but raising your invoice quickly, demonstrates that getting paid is important to you. It also provides the person or business you are invoicing with certainly – they are not left waiting for an unexpected invoice to appear. Ensure your actions match your business terms and be prompt and clear when raising an invoice.
3. Schedule reminders
After you have sent your invoice, be sure to set a reminder for when it falls due and check whether it has been paid. If your invoice has not been paid by the date mentioned, you should send a reminder email or letter. Following up sends a clear message that you take payment terms seriously.
4. Establish a process for late payments
No matter how diligent you are with your terms of business and chasing invoices, you will likely encounter late payments. You should establish a clear process for dealing with late payments, which may even include the assistance of debt recovery lawyers. You may wish to include several steps in your approach, including starting with a simple phone call to establish why payment is late and when you could expect to be paid. Once you have established your process, you can explain to the client that you have a standard escalation process, which may include charging interest.
5. Getting legal advice
In some cases, it may be necessary to instruct experts to manage the debt recovery process for you. A debt recovery solicitor will initially send a letter indicating that they have taken over managing the debt – in many cases, this is enough to prompt the debtor into paying.
Having staff working remotely has presented significant challenges for many businesses, but one of the most difficult to address is the increased cybersecurity risk. As many companies did not have sufficient opportunity to prepare for the transition to homeworking, they may not have identified potential cybersecurity issues. Moreover, it is now much harder to monitor staff and ensure they are following safe practices.
Cybercriminals have wasted no time in exploiting these weaknesses, and businesses are encountering threats regularly. Here we look at the cybersecurity risks that homeworking may present to your business and, most importantly, how you can mitigate them.
What are the most common cybersecurity risks?
Homeworking raises numerous cybersecurity risks, and it is more important than ever for businesses to recognise these. Some of the most common risks include:
Human error
Data protection is a serious concern for businesses with homeworkers. An alarmingly high number of employees who work with sensitive data do not take adequate steps to destroy documents and avoid disposing of them in outside bins, where anyone might access them.
Likewise, unwittingly downloading contaminated files or software can infect devices with dangerous malware, including viruses, spyware and ransomware, and leave data vulnerable. This is a particular risk if employees use a personal computer for work since there is a greater chance of exposure.
Phishing attacks
Phishing attacks try to trick people into downloading malware or revealing sensitive information, like passwords. Often, they take the form of emails, text messages or phone calls purporting to be from well-known organisations that their victim is likely to recognise. Without proper awareness of the risks of phishing, employees can easily fall foul of these schemes.
Targeted attacks
Whilst phishing attacks are usually mass campaigns sent in the hopes of obtaining personal information, some might target your business to steal sensitive data. These attacks are often referred to as spear phishing as they are tailored to catch your employees. For instance, workers could receive emails allegedly from the company’s administration, asking them to reset their password, and even WhatsApp messages claiming to be from the CEO.
How to minimise the risks to your business
There are many simple steps that you can take to protect your business from cybersecurity risks:
Provide employees with a dedicated work laptop
Giving employees a work laptop makes it less likely that they will visit risky websites on the same device that holds their work data. Doing this also means that you can appropriate malware protection installed.
Set up a remote access VPN (Virtual Private Network) for employees to use
A VPN creates encrypted connections between remote computers and your company servers, ensuring privacy and security.
Educate your staff
Having a keen awareness of cybersecurity risks will help your employees guard against threats. Giving them proper guidance on how to dispose of sensitive data, create strong passwords and recognise phishing attacks. Make sure they know who to reach out to for help and encourage them to do so.
Test your backup
Check that you will be able to recover data if your business is exposed to a threat.
Conduct regular cybersecurity risk assessments
Threats are constantly evolving, and it is crucial to keep on top of them. Frequently reviewing your business’s vulnerabilities will help you stay one step ahead.
Under a child maintenance arrangement, child maintenance is usually paid by the parent who does not have day-to-day care of the child or does not usually live with the child. If this payment is not forthcoming, the receiving parent could launch a civil legal claim. However, this option is expensive and still leaves the issue of ensuring the paying parent complies with the judgment. Instead, where possible, you, as the receiving parent, can approach the Child Maintenance Service (CMS), which has wide-ranging powers of enforcement.
What measures can the CMS take if a parent fails to pay?
The CMS can secure payment using a range of powers, including:
- Ordering the paying parent’s employer to make a deduction from their wages or pension
- Instructing the paying parent’s bank or building society to take regular payments or a lump sum from their account
- Taking the paying parent to court to recover arrears via a liability order
What is a liability order?
A liability order allows the CMS to take legal action against the paying parent to recover the debt. They could:
- Negotiate payment using bailiffs, or ask them to seize and sell the paying parent’s belongings
- Use an ‘order for sale’ to sell the paying parent’s assets or property and take the proceeds
- Place the paying parent’s debt on the Register of Judgments, Orders and Fines, which will hinder them from getting a mortgage, credit card or loan
- Revoke the paying parent’s passport or driving licence, or prevent them from getting one
- Send the paying parent to prison
When will the CMS act?
When the CMS will act will depend on whether you reached a private child maintenance agreement or if your agreement was arranged through the CMS.
If you reached a private or ‘family-based’ agreement
If a private arrangement for child maintenance has broken down due to non-payment, the CMS can step in to collect ongoing child maintenance. This is provided the arrangement was made legally binding via a consent order at least 12 months prior. The CMS cannot recoup any arrears the paying parent already owes, though you could approach the court to enforce the consent order and recover the debt.
If you arranged child maintenance through the CMS
If the CMS collects maintenance from the paying parent on your behalf through ‘Collect and Pay’, they will know if payments have been missed. After trying to agree on a repayment schedule with the paying parent, they will use the enforcement measures outlined above to secure the arrears.
If the paying parent has agreed to pay you directly, known as ‘Direct Pay’, the CMS will need to be informed of non-payment before they can take action.
Has COVID-19 affected how the CMS approaches nonpayment?
The COVID-19 pandemic has impacted many parents’ ability to pay child maintenance. If a paying parent claims to be unable to pay due to an income reduction, the CMS may reassess their liability. In cases where the parent’s income has been reduced by 25% due to COVID-19, the CMS will make adjustments to maintenance calculations.
What happens if the paying parent is furloughed?
If a paying parent is in receipt of the 80% furlough payment, they will be expected to pay maintenance in full. The CMS will implement enforcement measures if payment is not forthcoming.
If you intend to leave savings, property or other assets to family or friends after you die, you need to consider inheritance tax (IHT). It could cost your heirs up to 40% of their inheritance. By planning ahead, you can minimise IHT and ensure as much of your estate as possible reaches your loved ones.
Understanding the tax-free allowance
The tax-free inheritance allowance, known as the nil-rate band, allows your beneficiaries to inherit up to £325,000 of your estate without incurring tax. On anything above this threshold, the standard 40% inheritance tax rate applies.
If you are leaving property to a family member, the main residence nil-rate band may also apply. This is an additional tax-free allowance that you can use if you pass on a property that you have lived in to your direct descendants, for instance, your child or grandchild. Currently, the main residence nil-rate band stands at £175,000.
Inheritance tax threshold frozen until 2026
Whilst the nil-rate band has remained the same since 2010/11, the main residence nil-rate band usually rises each year with inflation. The next increase was due this April, however, it was announced in the 2021 budget that the IHT thresholds would be frozen until 2026. A five-year freeze is significant in IHT planning, and it is advisable to review your situation in light of this announcement.
Planning for IHT
Most of us want the wealth we have accumulated over our lifetime to be put to good use by those we leave it to. Sadly, when end-of-life financial plans are not put in place, a large portion of assets can be diverted away from the intended recipients. However, with careful preparation, you can ensure as much as possible of your estate reaches your loved ones. As IHT planning can be complex, it is best to seek professional advice.
There are many steps you can take when IHT planning, including:
Pool your allowance with your spouse or civil partner
Spouses and civil partners usually inherit tax-free from their partner. Additionally, they can make use of the nil-rate allowances their partner was entitled to.
If your spouse or civil partner left their entire estate to you, you could apply both your own and your partner’s tax-free allowances when you pass on your estate. Doing so effectively doubles what you can leave your heirs without incurring any tax. If your partner uses a proportion of their nil-rate band to leave assets to others, then you will only be able to apply the percentage of the allowance they did not use.
Make a gift to loved ones
Gifting money or other assets before you die can reduce how much inheritance tax will be due on your estate. However, this must be done carefully as the timing of any gift is crucial. If it is made seven or more years before your death, the recipient will not have to pay any IHT on it. If you die within seven years of making the gift, IHT may be incurred. It will depend on the type and value of the gift.
Leave money to charity
To encourage charitable donations, assets left to a qualifying charitable body are exempt from IHT. Moreover, if you leave at least 10% of the value of your estate that surpasses the nil-rate bands to charity, you can reduce the IHT rate due on the remainder from 40% to 36%.
Social media copy
Inheritance tax thresholds have been frozen until 2026. Read our guide to how the freeze could affect your plans to leave assets to loved ones.
Have you thought about how tax might affect the inheritance you leave your loved ones? In our latest article, we look at the inheritance tax threshold freeze and the importance of planning.
Inheritance disputes may have risen in response to soaring property prices, second marriages and blended families, with relatives more likely to feel they are missing out, but the courts are pushing back on frivolous claims and obstructive family members.
Such disputes once seemed the preserve of celebrities and the wealthy, such as the former lover of singer George Michael who was reported to be planning a claim against the singer’s estate recently, but research carried out by Direct Line found that a quarter of people would be prepared to challenge a will if they felt they had been unfairly treated by a family member or loved one. This attitude has seen cases rise across the population in recent years, with a tripling in 2016 alone, according to the Royal Courts of Justice.
Many of these challenges are likely to fail, as there is often no basis for contesting a will, but the increasing numbers of second marriages and blended families, as well as a growing awareness of inheritance issues, are expected to drive more such cases in future, unless there is a shift in attitude towards drawing up a will.
And while it’s a common belief that a parent should leave their estate to their children, or to each other because they lived together like a married couple, the basic rule under English law is still that an individual can leave their assets to whoever they like.
To make a claim, a spouse, child, cohabitee or other dependant has to show they have not been left adequate financial provision under the will. In such cases, a claim can be made under the Inheritance (Provision for Family and Dependants) Act 1975, but two recent cases highlight the challenges involved. The courts will push back on frivolous claims, or where parties do not make reasonable attempts to settle a claim, and award costs against individuals in such cases.
In Rochford v Rochford, a daughter with long term health issues was left a small legacy in her father’s will, which had been made at a time when father and daughter had fallen out briefly. Her father did not update the will when they later reconciled, and so she claimed provision under the will after his death. This was contested by her aunt, who stood to inherit the majority of the estate. Despite the sums involved being relatively small, and the daughter suggesting they use mediation, the aunt refused, leading to a costly court case. As well as recognising the daughter’s claim, the judge criticised the aunt’s actions, and awarded the daughter additional sums, covering interest and costs.
In Shapton v Seviour, a healthy, home-owning daughter, with a good level of household income, demanded a share of her father’s modest estate. The father had left everything to his second wife, who suffered from ill health. Terminally ill and unable to work, the widow’s assets comprised her home and a small amount of savings, and she was reliant on state benefits. The judge rejected the daughter’s claim, saying she evidently was not in need of financial support, and that her father had been very clear that everything should pass to Mrs Seviour to support her needs. The daughter was ordered to pay the costs of the case.
“One of the reasons why disputes may arise is a lack of communication among families, where parents or partners may not discuss their plans or explain their reasoning while they are still alive, fuelling grievances after they die. Alongside, too often people think they do not need professional guidance, which can result in badly drafted wills, making their estate more open to challenge,” said wills and trusts expert Thomas Lee of Oxley & Coward Solicitors LLP. “There are also a number of misconceptions, such as believing that children are entitled to inherit from parents, which is not so, or that it’s enough to simply write down what you’d like to have happen, without having it witnessed.”
Unlike many areas of the law, will writing continues to be an unreserved legal activity which means that unregulated providers can offer their services alongside trained professionals, such as solicitors. But while the writing of a will is not regulated, the requirements for the drafting and execution of a valid Will are set out in legislation. So, for example, section 6 of the Wills Act 1837 requires wills to be signed in the presence of two or more witnesses, who must also sign in the presence of the person making the will. While the pandemic has seen a temporary change in the law to allow for witnessing to take place in the circumstances of lockdown, there are still strict requirements, leading to concerns that wills drafted during the pandemic may not have been witnessed properly, leaving them open to challenge.
Thomas added: “While the basic principles of drafting a will may appear simple, the complications of blended families and new partners are likely to need specialist advice. Many other day-to-day situations may also create complexity – such as a child with health issues, or where someone owns a business – none of which can be tackled with an off-the-shelf solution. A badly written will often causes more problems than having no will at all.
“A specialist should be able to suggest arrangements that will satisfy what may otherwise seem to be irreconcilable claims, and combined with good communication between families, this can help to avoid later disputes.”
Coronavirus lockdown keeps chancellor’s attention on the short term, with the promise of jabs securing jobs for an upturn next year
The impact of the coronavirus pandemic on the UK’s economic agenda dominated the Chancellor’s 2021 Budget Statement, with support for business and jobs receiving top-line billing.
In a statement focused on “protecting jobs and livelihoods”, the Chancellor outlined a range of measures designed to provide a continuing safety net for individuals, businesses, and the wider economy during the planned exit from lockdown and beyond, as outlined in the Prime Minister’s roadmap in February.
This further support will see the country recording the highest-ever level of peacetime borrowing, at 16.9% of GDP, and Mr Sunak paved the way for future tax revenues to restore public finances, including a rise in corporation tax from April 2023.
Business rates reliefs, cash grants, recovery loans and job support packages have all been extended. The furlough and self-employed support schemes will now run until September, with a reduced Government contribution as the economy starts to open up after the anticipated ending of lockdown. The £20 uplift to Universal Credit will continue and the national living wage will increase to £8.91 from April.
There will be new grants and loan schemes for all business from April, replacing the existing schemes which are now finishing, and non-essential retail, hospitality, personal care and gyms will benefit from targeted support for re-opening, with a cash grant scheme and an extension to the reduced rate of VAT for hospitality and tourism. The 5% VAT rate will stand until the end of September, then 12.5% for the next six months, before returning to the normal 20% rate in April 2022. The arts, culture and sports are also in line for £700m of support.
As predicted, there was an extension to the holiday on stamp duty land tax (SDLT) on the first £500,000 of a property purchase, meaning a tax saving of up to £15,000 for buyers. This was set to return to the pre-pandemic threshold after 31st March but has been extended until 30th June, to enable a backlog of transactions to complete.
In another move to stimulate the property market, a new mortgage guarantee scheme has been unveiled. Designed to help people onto the property ladder with smaller deposits, the scheme will provide a guarantee to lenders who offer mortgages to people with a deposit of 5%. This will be available for new mortgages up to December 2022 and applies to homes with a value of up to £600,000.
The measures outlined will bring Government support in response to the coronavirus pandemic to £407bn – the highest level of public sector net borrowing since the Second World War. However, this level is predicted[1] to fall from a high of almost 17% of national income in 2020/21 to just 2.8% over the next five years.
While the Chancellor did not propose any immediate or highly contentious tax rises, he has initiated some income-generating measures which will start to pay off in the coming years. This saw the freezing of many allowances, beyond any previously promised increases. The personal income and higher rate tax allowances are frozen from 2022-23 onwards, while the exempt amount for Capital Gains Tax, the Pensions Lifetime Allowance and the threshold for Inheritance Tax will be held at their current rate up to and including 2025-26.
Changes to corporation tax will see bigger business paying 25% from April 2023, although those with profits of less than £50,000 will continue to pay the current rate of 19%, and there will be a tapered increase for those with profits between £50,000 and £250,000, so only those with profits in excess of £250,000 will pay the highest rate.
In good news for business, the tax treatment of losses will allow companies a three year carry-back to write off losses of up to £2m. Also, upfront capital allowances will see qualifying new plant and machinery assets benefiting from a 130% first-year capital allowance in a drive to boost economic activity.
Despite the continuing lockdown, growth forecasts by the Office for Budget Responsibility have been revised upwards since November 2020, with the Office predicting a faster and more sustained recovery to reach pre-Covid levels by the middle of next year.
And while many of the announcements were widely trailed before the day, such as extensions to the furlough scheme and the stamp duty holiday, the Chancellor kept a few cards up his sleeve, with the announcement of various economy-boosting initiatives. These included the naming of eight new Freeports; measures designed to promote investment in environmental sustainability and the transition to net zero emissions; and a range of measures to support productivity, science and technology, and digital adoption.
Said Commercial expert Amy Cusworth of Oxley & Coward Solicitors LLP: “This Budget delivered as expected, with the focus on the economic impact of the ongoing pandemic, little in the way of nasty surprises and some potential tax-generating scenarios held back for now. One of those is the announcement on inheritance tax, following the recent consultation, and tax planning remains a priority while we wait, whether by individuals or anyone planning to sell their business.
“These days, many plans are trailed or ’leaked’ in advance of the Chancellor’s statement. The stamp duty holiday extension is an example of this, but conveyancing departments and homebuyers will be relieved to hear this confirmed. Everyone involved in the house buying process, from lenders and lawyers to local authorities, have been trying to keep pace with the huge rise in demand from buyers wanting to complete before the cut-off. The Chancellor’s extension should enable those transactions already in process to safely complete, although new purchases may struggle to beat the new deadline from a standing start.”
The Chancellor also announced a range of measures to support the victims of domestic abuse in the Budget, and family lawyer Colin Musgrave of Oxley & Coward Solicitors LLP commented: “The pandemic and lockdown has not only affected people financially; we have seen a marked increase in requests to our family law team, whether people are struggling in close living conditions through lack of compatibility or because of more serious issues, such as domestic abuse. The statistics back this up, showing a significant rise in domestic abuse during the pandemic, and we welcome the news from the Chancellor that there will be more support for the victims.”
[1] Source: Office for National Statistics and Office for Budget Responsibility
While many workplaces continue to be affected by the coronavirus pandemic, employment law and the
Acas Code of Practice concerning disciplinary and grievance procedures still apply. If you are facing disciplinary action or grievance procedures, you must be aware of your rights and how these might be affected by coronavirus restrictions.
Furloughed workers
If you are currently on furlough, it is still possible to be involved in disciplinary or grievance procedures. Whilst on furlough, you may:
- Take part in a grievance or disciplinary investigation or hearing
- Raise a grievance
Practical challenges
Under the Acas Code of Practice on disciplinary and grievance procedures, disciplinary and grievance procedures must always be fair and reasonable. However, while the coronavirus pandemic continues, they must also be in line with public health guidelines, including social distancing and avoiding workplaces where possible. As a result, there may be practical challenges to holding disciplinary or grievance procedures, but they must continue without undue delay. Your employer must attempt to proceed in a safe, fair and reasonable manner. If this is not possible, they must consider whether it would be fair to suspend proceedings until a later date.
Suspending proceedings
In deciding whether proceedings should be suspended, your employer should consider the case’s individual circumstances. For example, the matter may be urgent, where it deals with gross misconduct or unlawful harassment. However, minor disciplinary issues may be dealt with at a later date where appropriate.
If your case may result in an employment tribunal, your employer must be mindful of the time limit for bringing a claim.
Can a disciplinary or grievance procedure be carried out remotely?
Yes. Video meetings can form part of any investigation into disciplinary or grievance matters. Your employer may conduct a video meeting, interview or hearing so long as the process is fair and reasonable. Your employer must consider whether:
- All parties have adequate access to the technology required to take part in a video meeting
- Any party has a disability or any other accessibility issues which may affect their ability to take part
- It is possible to access all of the evidence required to conduct the investigation or hearing, and whether all parties can access the evidence during the video hearing.
- It is possible to assess the evidence and question the relevant parties fairly during a video hearing
Will a video hearing be recorded?
Employers must keep a record of any disciplinary or grievance procedures carried out, and such procedures conducted via video may be recorded. However, everyone involved must agree to the meeting being recorded.
If you are in the process of buying a property, you may have considered whether you will be able to take advantage of the stamp duty holiday, allowing you to save up to £15,000 on your property purchase. In this article, we look at the possible extension of the stamp duty holiday and the potential impact for buyers and sellers on how transactions will proceed.
Stamp duty holiday – demand and delays
The stamp duty holiday was introduced to stimulate the property market and means that until the end of March 2021, the level at which stamp duty is charged on a residential property has been raised to £500,000. However, arguably, the scheme has been too successful, putting pressure on the industry as more people race to take advantage of the tax break.
Coupled with operations restrictions, the stamp duty holiday has slowed almost every part of the conveyancing process. Surveyors, mortgage lenders, search agencies and conveyancing lawyers are struggling to meet demand which means that the average property transaction completion time has increased from 12 weeks to 16 weeks. As a result, new buyers are unlikely to meet the March 31st deadline to take advantage of the stamp duty holiday.
Will the stamp duty holiday be extended?
The government has stated that it has no plan to extend the stamp duty holiday long term but may extend it by six weeks to account for delays in the process. However, during the pandemic, the rules often change at the last minute. There have been suggestions that the Chancellor could allow transactions which have passed a certain point in the process to continue without the buyer being liable to pay stamp duty even where they exceed the March deadline. Further tax announcements are expected as part of the Budget, scheduled for March 3rd.
What can buyers and sellers do?
There are several things that both buyers and sellers can do in the meantime to ensure their property transaction moves and efficiently as possible.
Instruct a solicitor. Buyers should instruct a solicitor as soon as an offer is accepted, and sellers should instruct a solicitor as soon as their property is listed.
Get an Energy Performance Certificate (EPC). This is required by law, and you may still need to get one. You should also gather other paperwork, such as planning permissions and compliance certificates from any works done.
Sort out a mortgage in principle. Before you make an offer on a property, start the mortgage process. Many lenders are experiencing delays, and mortgage options are fewer – particularly for first-time buyers. Get a head start.
Consider time for searches. Many local authorities are struggling to keep up with the demand for searches. You may wish to discuss using a private company via your solicitor.
New rights and the beginning of the end of leasehold
Leasehold property owners are set for important changes in the coming months, with the Government’s plans to grant new rights on lease extensions and the ending of ground rent. It is also the beginning of the end for this form of ownership, with a commitment to shift to ‘commonhold’ on the horizon, but the benefits to householders are likely to take time to filter through.
Nearly all flats and some houses in England and Wales are owned on a leasehold basis, giving the owner the right to live in the property for the term of the lease, commonly between 150 and 999 years. The freehold of the building may be owned by a company in which all the flat owners hold shares and have a say, but the freehold may be owned by an institutional investor, property company or an individual.
While leasehold ownership provides a means of ensuring that people who occupy flats in the same building contribute towards its upkeep and comply with common rules, there has been pressure in recent years to tackle the ways in which the system may penalise property owners. It is often difficult to obtain a mortgage when a lease has less than 60 years left to run and buying a lease extension will usually involve a complicated and often expensive process. Building companies have also used the system to impose high ground rents, and hefty rises in future years, with no associated benefit.
As a result, the Law Commission undertook a review and last year published recommendations to overhaul residential property in England and Wales, by reducing the number of new houses sold on a leasehold basis, empowering leaseholders to take control of their property, and encouraging commonhold as an alternative to leasehold ownership.
The Government’s recent announcement is in line with the recommendations, and means the leasehold system is set for a major shake-up.
First, the Government will tackle how lease extensions are granted and the ending of ground rent. It means that the millions of existing leaseholders in England and Wales will have a right to extend their lease by 990 years at zero ground rent. This will be a universal right and is most significant for those owning houses under a lease, as currently these leases may only be extended by an additional 50 years.
Alongside, there will be a simplification of the valuation process for calculating the premium payable for a lease extension, and the Government has said that there will be an online calculator enabling leaseholders to see what they should expect to pay. The legislation will also provide for zero ground rent on new leasehold retirement properties.
There will be a shift towards commonhold, a form of ownership used in many other countries which enables residents to manage shared spaces themselves. In practice, a commonhold will be similar to those leases where all the tenants have a share in the freehold or in the company that owns the freehold.
Property law/conveyancing expert Miss Dawn Cherry (Oxley & Coward LLP) commented: “These measures will be the biggest shake up of property law in 40 years. While it could mean big savings for some leaseholders, it is not yet clear if, how, and when zero ground rents may be applied retrospectively, which is of particular importance to those locked into high ground rents.
“The proposed push towards commonhold announced by the Government is a more ambitious target and it will be interesting to see how this takes shape over coming months and years. Commonhold has been an option in England and Wales since its introduction in 2004, placing ownership of a shared property under a commonhold association to represent the individual owners, but very few housebuilders have taken this route to date.”
The necessary legislation to set ground rents to zero will be put before Parliament this year, and the Government proposes to set up a council to develop an action plan towards commonhold, bringing together leaseholders, government officials and property industry professionals.
The moves are the latest to tackle unfair practices in the leasehold system and follow last year’s ban on leaseholds for almost all new build houses. While leasehold is more likely to be found in properties with shared spaces, in recent years developers had started to sell houses on a leasehold basis.
The practice saw four of Britain’s biggest housebuilders facing enforcement by the competition watchdog for potential mis-selling, on the basis that they failed to properly explain the annual ground rent or how fast it would rise. Some of the arrangements in place saw ground rents doubling every decade, with leaseholders facing annual bills for thousands of pounds and their homes rendered effectively unsellable.
Miss Cherry added: “The changes are about making laws fit for the 21st century. While a fair and well-managed leasehold arrangement might be justified for multi-occupancy buildings, it is hard to defend it being used as a loophole for retaining the freehold and collecting escalating service charges and ground rents. In the longer term, all leasehold property owners are likely to benefit from the updating of the law.”
| Freehold vs Leasehold
When buying freehold, you will own the property and the land it sits on.
A shared freehold means you own your personal space in the property, and generally a share of the land and the shared spaces.
With a leasehold property you buy the right to live in the property for the remaining duration of the lease, with the land, the structure of the building and shared spaces owned by the freeholder. They will hold the buildings insurance and will consult with leaseholders about any works that are required, collecting service charges from each leaseholder to pay for all maintenance and managing such work. The owner of a leasehold property is effectively a tenant in a very long-term rental, having to pay an annual ground rent and ask for consent to make any changes to the property.
· Why does it matter how long a lease has to run?
Leases of between 99 and 999 years are commonly granted and generally the value of a property will reduce as the lease gets closer to the end. Lenders are unlikely to offer a mortgage on a property with anything less than 25 years left to run. If a property has only a short time left on the lease, you can ask the seller to seek an extension, at a cost.
· How is the ground rent set?
Normally ground rent will apply only if it is a leasehold property. Ground rent can be a fixed charge or one that will change over time. While some ground rents may be very low – so-called ‘peppercorn’ – they can be substantial and have significant escalation written in. |
Avoiding a turkey of a Christmas when the family gets together
With the pandemic putting relationships under pressure and divorce rates recording their biggest percentage rise since 1972, family professionals and support groups are encouraging couples to focus on the wellbeing of the family over the festive season.
Traditionally, more people petition for divorce in January than at any other time of the year, which is attributed to the pressure of the family Christmas get-together. This season it’s expected that many more relationships, already under stress as a result of the life challenges brought about by coronavirus, will struggle to survive.
Early in the pandemic, a survey by the relationship charity Relate found that nearly a quarter of people reported that lockdown had placed additional pressure on their relationship, creating a ‘make or break’ environment according to the charity. A follow-on survey, later in the year, found 8% saying lockdown had made them realise they needed to end their relationship, but 43% saying it had brought them closer. This later finding supports a report[1] by the Marriage Foundation suggesting that more marriages improved during the pandemic than worsened.
“It’s great to hear that seeing more of each other has helped some couples to work on improving their relationships. Unfortunately, these figures also suggest that vulnerable relationships have felt the impact of the lockdown, for both the close proximity it brought and also the economic and social impact. As family lawyers we saw the lockdown was hardest on those who were considering or had already started the process of divorce, as many were still living together,” said family law expert Sarah Scott of Rotherham-based solicitors Oxley & Coward.
“Now we have the pressure of a concentrated, and uncharacteristic, Christmas, where decisions will have to be made about who is part of the bubble, and then further disruption and restrictions ahead. This month will bring unique challenges, but the months ahead will continue to be a test for everyone’s relationships, against a backdrop of a continuing trend towards divorce.”
The latest figures from the Office for National Statistics (ONS) show an 18% spike in the rates of opposite-sex divorce in 2019 with 107,599 cases. While the size of the increase is partly due to a backlog of divorce petitions which resulted in higher numbers of divorce petitions completing during 2019, this figure is the highest since 2014. It is also the largest annual percentage rise since 1972, when The Divorce Reform Act 1969 opened the way to an easier process for divorce. Alongside, the number of same-sex divorces among both male and female couples has increased each year since 2015. In 2019, there were 822 divorces among same-sex couples, which is nearly double the previous year and of these, 72% were female couples.
Most divorce petitions in opposite-sex couples came from the wife, at 62%, and unreasonable behaviour was the most common ground for the divorce, cited by 35% of all husbands and 49% of all wives.
And while no-fault divorce will be available in future, with the Divorce, Dissolution and Separation Act 2020 having received Royal Assent, grounds for divorce under the existing Matrimonial Causes Act 1973 require one party to prove their partner is at fault through adultery, desertion or unreasonable behaviour. The only alternative to a fault-based petition currently is a period of separation: two years where both parties agree to divorce, or five years if one side does not consent.
Added Sarah: “If the worst happens and couples feel they cannot see a future together in 2021, then working out how to navigate the split in a way that is supportive of each other, and most importantly any children involved, is best for everyone. Talking things through is always best and getting round the table with some expert input before you make any agreement over asset sharing or custody arrangements is a good idea.
“Some people are worried about how to access advice while the Covid-19 restrictions and health concerns are with us, but for family lawyers across the country, we know how important it is to be there for couples, and when we can’t meet face to face, there are all the other ways to talk things through, whether video calls, telephone, email or messaging.”
She added: “Ending a marriage is one of the toughest things anyone will ever deal with, but a collaborative approach can go a long way towards easing the emotional distress. And the best Christmas present for the whole family is being focused on keeping communication positive.”
[1] According to analysis of 2,559 parents who completed the UK Household Longitudinal Survey Coronavirus Study conducted by Essex University
It can be disappointing to discover that a Christmas gift is faulty, but fortunately, you do have certain rights when it comes to returning gifts that do not function as they should. You may also be able to return gifts that you simply did not want or do not need. However, your rights differ if the product is in good working condition. In this post, we look at your rights when returning both faulty and unwanted Christmas gifts.
Can I return a faulty Christmas gift?
If a gift you have received turns out to be faulty, you have certain rights under the Consumer Rights Act 2015. Under the Act, you have a right to return a defective item and receive a refund.
30-day right to return
Where you return faulty goods within 30 days of receiving them from the vendor, you have a right to a refund – regardless of what the store policy says.
After 30 days
If the fault only becomes apparent after 30 days, but within the first six months of having the product, you must allow the vendor to repair or replace the product. If the repair is not successful or they cannot offer you a suitable replacement, you then have a right to a refund.
After six months
After six months of being in possession of the product, you must be able to prove that the fault existed when you purchased the product in order to return it.
Can I return unwanted Christmas gifts?
There are many reasons as to why you may wish to return a Christmas gift, but you do not have guaranteed rights in law to return an item unless it is faulty. Most stores have returns policies which will allow you to return unwanted goods within a certain timeframe, allowing you to obtain an exchange, credit note or refund. This is, however, a discretionary policy and not a legal right. You will normally need a valid receipt proving purchase, the credit or debit card used to buy the product and the original packaging.
Can I return items bought online?
You have extended rights when an item was bought online, over the phone or by mail order.
The Consumer Contracts Regulations
Under these regulations, you have a right to cancel. This gives you 14 days from the day the goods arrived to change your mind about the purchase. If you return the goods within this time frame, you are legally entitled to a full refund.
Remember, the 14-day period will run from when the person who gifted you the goods received them.
Landlords must gear up for new safety checks
Residential landlords must get their houses in order with the arrival of further legislation to protect tenants through electrical and building safety requirements.
New electrical safety standards are rolling out for private sector tenancies and the other upcoming challenge for residential landlords is fire safety compliance for building structures. Both safety aspects have been accelerated following tragic outcomes. Electricity causes about half of the UK’s 37,000 house fires a year, according to the charity Electrical Safety First, and faulty electrics cause some 70 deaths and 350,000 injuries each year in Britain. An electrical fire was also the reason for the Grenfell Tower fire tragedy, which has since placed flammable building materials in multi-level accommodation in the spotlight.
The Electrical Safety Standards in the Private Rented Sector (England) Regulations came into force earlier this year. New tenancies since June 2020 should have complied with the new standard, but by next April it will apply to all existing tenancies as well. It applies to most residential tenancies with a few exceptions, such as when the landlord shares the property, student accommodation, long leases and hostels or care homes.
Landlords must now ensure that electrical installations are checked by a qualified person to ensure they meet the standards set out in the BS 7671 : 2018 Wiring Regulations and an Electrical Safety Condition Report – or EICR – must be provided to existing tenants within 28 days and before a tenancy starts for new tenants. For tenancies which commenced before June this year, the certificate must be in place from 1st April 2021. The electrical installation must be visually checked on a regular basis, and a full check undertaken by a qualified person at least every five years.
If any fault or potential fault is identified by the report then further investigations or repairs must be completed by a qualified person within 28 days of the inspection. This timeframe could be reduced if the report requires it be undertaken more urgently. Once undertaken, the landlord must obtain written confirmation of the works having been completed and provide this to the tenant within 28 days of the completion of works. Where regulations are breached, local authorities will have powers to impose financial penalties of up to £30,000 for each breach.
“Landlords have a duty to provide properties that are fit for purpose, but until now there has not been a specific requirement for testing of electrical installations. An up to date electrical safety check now joins gas safety checks and energy performance certificates as a prescribed requirement, which marks a significant tightening of the rules,” explained Dawn Cherry, Partner of solicitors Oxley & Coward in Rotherham.
“Another significant legislative shift for landlords is the draft Building Safety Bill, which is demanding attention. Since the Grenfell Tower fire tragedy, which was thought to have started from faulty wiring on a fridge, fire safety in buildings has been the focus of legislators. New requirements are expected to be in force from next autumn, even though the Bill is still at the draft stage. While the fine print has not been agreed, landlords with properties that will be affected should be getting up to speed and taking the necessary steps to get buildings up to scratch.”
The Bill will cover residential buildings of at least 18 metres or more than six storeys above ground level, with two or more units. A building safety manager will be a requirement and there will be various new reporting obligations and building safety standards. Tenants will be required to contribute towards building safety charges, on top of existing service charges, and this will be held in a separate, designated account.
She added: “It looks as though the Government is looking to ensure upgrade of historic defects within as little as two years from implementation of the Bill. If so, landlords will have little time to progress works, which is why they should be looking to understand the new environment and get a move on now.”
There is no denying that 2020 is a year which will go down in history – for many reasons. The global pandemic, Brexit, and the fallout from these events has had a significant impact on many areas of our lives. These events may have far-reaching implications for your finances, your relationships and your business interests. As a result, the new year could be an excellent time to write a will or to review your existing will. In this article, we take a look at some of the things you should consider.
Have you made a will?
Recent research by Royal London determined that 54% of UK adults do not have a will. This includes 59% of parents who either do not have a will or have one that does not accurately reflect their wishes. If you have not made a will, you have no control over what happens to your assets after you pass away. If you have children, own property, have savings or investments, or run a business making a will is particularly important.
Does your will still accurately reflect your wishes?
If your circumstances have changed this year, you should update your will to reflect those changes. Perhaps you have changed career, moved home, got married or divorced, or welcomed a new baby to the family. In any of these circumstances, you should update your will to ensure it is reflective of your current situation.
Do you need to change your beneficiaries or executors?
Many people need to change the people that are named in their will for a variety of reasons. Perhaps you have outlived executors or beneficiaries named on your will, or maybe the relationship has deteriorated. In this case, you would need to replace them in your will to avoid complications in the event of your death.
Have your business interests changed?
This year has been challenging for businesses. With adjustments to lockdown restrictions, some businesses may have flourished while others have struggled. If your business interests have changed significantly, now might be a good time to review both your will and your succession plan for your business.
Do you wish to take advantage of Inheritance Tax planning?
It is always advisable to review your will and estate regularly in line with current tax legislation, reliefs and opportunities to save on Inheritance Tax. Reviewing your affairs can be a great way to start the year. It allows you to understand where you are financially, and to effectively make plans for the future, knowing that your will is up to date.
The Way forward….
On our “home page” you will find reference to “Try our estate planning Tool”. If you wish to amend your will or, give instructions for your first Will, you can provide information to us online to save time and money and when you meet with one of our expert lawyers they will be ready to provide advice. You can take your time providing this information and it doesn’t have to be done in one “fell swoop” you can go back to it when convenient and carry on where you left off, in your own time when it suits you. Once complete, one of our lawyers will contact you to discuss the next steps and arrange a face to face meeting with you. Alternatively, if you prefer an initial face to face meeting contact us on 01709 510999 and a member of our staff will be happy to book you an appointment.
Why Big Brother needs to watch out when it comes to employee monitoring
by Amy Cusworth, Corporate legal expert with Oxley & Coward Solicitors in Rotherham .
The ‘Big Brother’ surveillance scenario envisaged by George Orwell has long since become reality. The ability to watch citizens outlined in the futuristic novel Nineteen Eighty-Four, published in 1949, is now firmly fact not fiction.
Rolling back to 2013, the British Security Industry Association estimated that the number of CCTV surveillance cameras in the UK numbered some 4 to 6 million and recent estimates put London in the top three cities worldwide having the highest number of cameras by population. This race towards technological surveillance and monitoring saw a further boost during the summer lockdown when employees were forced to work from home, creating a perfect storm to inspire uptake of activity tracking software.
Research by academics at Cardiff University found that employers were worried that workers might shirk while they were away from the workplace, even though output did not seem to be affected. These concerns saw unprecedented numbers signing up for software monitoring solutions, with companies such as Hubstaff and Sneek reporting huge increases in the number of users during lockdown.
Products described as ‘workplace analytics’ or ‘time tracking’ may sound harmless enough, and appear an easy solution to manage productivity, or to protect against data breaches that could jeopardise a company’s intellectual property or their customer base. However, many of these software solutions will log every action by individual keystroke, and often go far beyond what is really necessary to manage a workforce, whether working remotely or not.
The sort of data collected would typically record which applications and websites have been used, the level of activity by keyboard or mouse, and may even drill down to list the recipient and subject lines of individual emails or messages. Many will take regular screenshots from the device and some can provide live video feed of the screen.
This level of information has the potential to step into dangerous territory when it comes to staying within the law, particularly when you add in the chance of recording private passwords and credentials, or even personal medical information.
And while some may argue that such software is good for maintaining productivity, the Chartered Institute of Personnel and Development (CIPD) has published research which suggests that surveillance in the workplace can undermine trust and adversely affect employer/employee relationships.
That finding is backed up by figures from trade union Prospect, who commissioned a poll to look at employee attitudes to workplace monitoring. This showed 80% of workers were uncomfortable with camera monitoring and 66% of workers with keystroke monitoring, while 48% believed any monitoring software would damage their working relationship, and this figure rose to 62% among younger workers.
These figures provide a strong argument for canvassing employees as the first option and looking for mutual trust in the working environment. Encouraging staff to be involved and to identify benefits from their side, will help companies work towards technology usage that feels good for everyone, as well as staying the right side of the law.
As monitoring will include processing of personal data, you will need to comply with data protection law, as set out in the Data Protection Act 2018 and the European General Data Protection Regulation (EU) 2016/679, known as GDPR. Failure to comply with data protection laws can have a serious impact for companies, both financially and reputationally, when it comes to monitoring and data collection. The fashion retailer H&M was fined €35 million recently for “flagrant disregard for data protection” when managers recorded anecdotal information about employees’ private lives, sharing this to make decisions around employee performance and ongoing employment at their customer service centre.
The regulator for data protection in the UK is the Information Commissioner’s Office (ICO) and they have some very useful guidance on this topic within their code of employment practice, but the key issues to consider are transparency, proportionality, and legality.
In weighing up the merits of monitoring, the interests of the employee must be balanced against the interests of the employer. No business case, such as keeping track of productivity to protect the business, can over-ride the employer’s obligations to comply with the Data Protection Act. Importantly, any proposed monitoring will first require a detailed assessment of the impact on the privacy of the employee.
Under Article 8 of the European Convention on Human Rights, which was incorporated into UK law by the Human Rights Act 1998, organisations must guarantee workers some degree of privacy in the workplace. The general principle is that it will usually be intrusive to monitor your workers, who are entitled to keep their personal lives private, and are also entitled to a degree of privacy in the work environment.
Beyond this, there is the legal consideration of the mutual duty of trust and confidence implied into the employment contract between employer and employee. If an employer were to breach this duty through monitoring practices which could be interpreted as destroying trust and confidence, it could open the door to claims such as constructive dismissal.
Another vital stage in the assessment process is to undertake due diligence with any proposed software provider, as you will be trusting them with your data as this is collected and processed from individual workers. It is likely you will need to carry out a data protection impact assessment (DPIA), which is required under GDPR where the processing of personal data presents a high risk to the rights and freedoms of individuals. Undertaking a DPIA involves a systematic approach to consider all aspects of how the processing will take place and identifying risks and how they may be mitigated. It is a useful tool to make sure you have covered all bases and the ICO has a template for organisations to follow.
If monitoring has been fully assessed and shown to be both justified and lawful, the next step will be to make sure everyone knows exactly how it will work in practice. Privacy notices and policies will need to be updated, but most important will be ensuring the whole issue is approached in an open and transparent way. That relates to both the logistics of how the monitoring itself will be conducted, but also how any resulting data might be used.
Drivers for the app-based taxi service Uber have started a class action in the Dutch courts, alleging that the company relied solely on automated algorithms to make employment-related decisions in breach of Article 22 of GDPR. Any automatic processing which produces a negative effect for the individual should be open to challenge under Article 22 and this case is likely to become the biggest ever to tackle this issue, and the use of artificial intelligence.
As we continue through the pandemic, we are setting the scene for the future. Developments such as employee monitoring should be considered with care before rushing to adopt them, as while there may be the expectation that workers will remain working from home for at least the foreseeable future, any software solution should be in pursuit of a better working environment.
Tips:
- Start with privacy. Undertake an impact assessment setting out what the monitoring will collect, the justification for it, any adverse impacts and how this will be resolved.
- Be transparent. Encourage discussion with employees over how it will work and where there may be benefits for both sides.
- Undertake due diligence on the supplier. Do they have robust practices in place, can you trust them with this valuable data?
- Stay within the law. When sensitive data is being processed, this must comply with legal requirements for data protection, human rights, and employment contracts.
- Keep things confidential. Ensure ongoing use of any software is limited to those who know to follow strict rules of confidentiality and data security.
COVID-19 has had a significant impact on almost every business in the UK. For many businesses, it means they no longer require their business premises, or can no longer afford it. There are many other reasons, not directly related to COVID-19, that you may wish to exit a commercial lease. Maybe your operations have downsized or expanded, and the place is no longer fit for purpose, or you need to change location. Regardless of the circumstances, if you need to get out of a commercial lease early, there are several options which may be available to you.
In this article, we look at the factors which may affect whether you can get out of your commercial lease before the lease term.
Is it difficult to get out of a commercial lease early?
Getting out of a commercial lease early can be challenging – after all, the contract is designed to give the landlord an element of security and assurance. Whether you are able to end the lease early will generally depend on the terms of your lease, but you may be able to come to an agreement with your landlord.
Surrendering a commercial lease
If you have a good relationship and have been a decent tenant, they may be sympathetic to your situation, and you can come to some agreement. You may be expected to pay a certain amount of financial compensation for surrendering a lease. However, if they are unwilling to come to such an arrangement, there may be other formal legal options available to you.
A break clause in the lease
Many leases include what is known as a ‘break clause’. This clause offers both landlord and tenant the opportunity to bring the lease to an end after a predefined amount of time. Your solicitor can check your lease for a break clause and explain to you how this might operate in your favour.
If there is a break clause in your lease, you will need to adhere to its terms which may stipulate a period of notice and how you should notify your landlord. For example, you may need to provide your landlord with several months’ notice in writing, or you may need to notify your landlord at a specific address. These requirements must be met as failure to do so could invalidate your exit from the lease.
Assigning a commercial lease
Where there is no break clause in your lease, and your landlord is unwilling to negotiate the surrender of the lease, it may be possible to assign the lease to a third party. You will generally be responsible for finding someone to take on the lease, and the landlord must approve the third party before the lease can be assigned.
Property booms as home and overseas buyers rush to beat deadline
Property buyers are fighting off the pandemic to catch a new home before stamp duty goes back to its normal rate. For overseas buyers the race is even more important, as the rate will carry an additional surcharge for them from April.
As part of the range of measures to provide economic support through the Covid-19 pandemic, the Government introduced a temporary holiday for stamp duty land tax (SDLT) on the first £500,000 of purchases, but this will come to an end on 31 March 2021, when it will revert to the standard rates.
And a new rate will be introduced from that time for any purchasers based overseas, who will have to pay an extra 2% on top for any purchases. Until now, residence has not been a factor in calculating SDLT , but this new surcharge for non-UK resident buyers of residential property has been introduced as part of moves by Government to manage the pressure on house prices brought about by foreign investors.
Stamp Duty Land Tax (SDLT) is payable in England on residential property transactions where the market value is more than £125,000, with a tiered scale related to the purchase price, and with different rules if you’re a first time buyer, or buying an additional home or a buy-to-let, or through a company.
The standard rules provide a complete exemption from stamp duty for qualifying first-time buyers where the full market value of the property they are buying is £300,000 or less, and a reduced bill when the full market value is between £300,001 and £500,000.
There is also the chance to benefit when a property is being purchased under an approved shared ownership scheme, as buyers can choose whether they pay SDLT on the full market value or just on the value of the share they have purchased.
The current holiday on residential transactions means savings of up to £15,000 on each property costing £500,000 or more, which has helped move the property market into full swing following the end of the summer lockdown according to reported figures. The full saving is also available for those buying property in addition to their primary residence, whether for holiday use or buy to let, although they continue to pay the standard 3% surcharge applied for second and subsequent property purchases.
Said conveyancing expert Dawn Cherry of Oxley & Coward Solicitors LLP: “Any buyer who completes on a purchase before April 2021 is going to benefit, whether they are buying their main home, a second or buy to let property, or from overseas, and it means the next six months will be crucial not just for home buyers in the UK, but for overseas investors and expats looking to buy UK residential property.”
Dawn added: “For those considering a property purchase, the 31st March cut-off date for completions means the closer we get to that date the more likely we are to see log-jams in the conveyancing process, whether for land searches with local authorities, or mortgage applications with lenders, as everyone rushes to complete and services struggle to keep up with demand, so it’s worth getting some advice early on to see how much can be put in place while you do your property search.”
With recent announcements from both the UK and Scottish government about further lockdown restrictions, you might be planning to fill your time with some home improvements. At the time of writing, tradespeople are exempt from lockdown restrictions and may enter your home to carry out necessary repairs. However, you should be aware that certain modifications to your home and garden may require specific permissions. In this article, we look at where you can find the information you need and provide a brief guide to when you may and may not need planning permission.
When might I need planning permission, and how do I check?
You will likely need planning permission if you:
- Plan to build something new
- Make significant changes to the building you live in, such as building an extension
- Want to change the use purpose of a building
You may also need permission to build a fence, gate or wall in certain circumstances.
Planning law differs in the separate jurisdictions across the UK, so we have set out generally when you may need to check whether you need planning permission. However, to check whether it is required and the process for your specific circumstances, you should visit the websites below:
England – You should contact your local planning authority (LPA)
Scotland – Visit the Scottish Government website on the topic for more information and where you can also find the contact details for your local planning authority.
Wales – You can visit the Planning Portal
Northern Ireland – Visit NI Direct to find out about the specific regulations and application process. You can also find out how to get assistance with the planning and application process.
What can I do without planning permission?
There are many things you can do to your home that do not require planning permission, including:
Interior developments
Remodelling the interior of your home can give you more space and transform the look and feel of your home. Generally, you will not need planning permission, but you may require the relevant Building Regulations approval for any electrical or structural works.
Sheds, garages and other outbuildings
If you need space to store your summer garden furniture, or you fancy building a separate area for your home office, you can add a shed, garage, or certain other outbuildings without planning permission. These are ‘permitted developments’ so long as they are of a reasonable size, taking up no more than half of the land and no more than 4 metres high.
Doors and windows
Unless you live in a listed building, you can replace the windows and doors in your home without listed building consent.
The introduction of social distancing in response to the coronavirus outbreak has caused disruption to many vital services – including in the justice system. Many services that would typically have taken place face-to-face have been adapted to meet the challenges of our current climate. One such service is family court hearings, which may now take place remotely. In this post, we look at how remote family court hearings currently operate.
Will my family court hearing be held remotely or in-person?
For now, it is the default position that family court hearings will be held remotely using phone, video link or emails. However, there may be certain circumstances where in order to ensure fairness and in the interests of justice, a court-based hearing is necessary.
Where such a hearing is safe to take place, you may need to attend a court-based hearing. It will be up to the judge, magistrates or panel to decide whether a court-based hearing is necessary. They will consider whether audio or video testimony is suitable for the matters at stake, and the issues they may present for those taking part in the hearing.
What if my case is urgent?
Even in the circumstances where a case is urgent, arrangements may be made swiftly for the hearing to be conducted remotely. When it is not possible to carry out the hearing remotely, but there are urgent issues to be dealt with, the court can arrange to conduct a court-based hearing while adhering to social distancing guidelines.
How is a remote hearing arranged?
Your solicitor may arrange a remote hearing, or if both parties have not yet instructed a solicitor, the court will organise the remote hearing. When the applicant has instructed a lawyer, they will be responsible for arranging the hearing. However, if the applicant does not have legal representation, but the respondent does, the respondent’s solicitor will arrange the remote hearing. Where the court buildings are closed, a member of staff or a judge working remotely will arrange the hearing.
What technology may be used in a remote hearing?
Remote hearings can be carried out using a variety of communication methods, and the tools that are used will depend on the requirements of the hearing. The following methods may be used:
- An exchange of emails between the parties involved in the hearing
- Using telephone conferencing technology
- Where the court has a video-link system, this may be used
- Skype for Business, which has been installed on many judicial laptops
- Any other method of communication deemed to be appropriate for remote hearings such as Facetime, Zoom or BT MeetMe.
Remote hearings and confidentiality
Remote hearings must be confidential, and all parties to the hearings must attend in private. It is also now an offence to make an unauthorised recording of a remote family court hearing under the Coronavirus Act 2020.
Magistrates and judges must strive to ensure that only those who would be permitted to be in the courtroom may have access to the remote hearing and that all parties understand the rules.
Social media copy
Dealing with family matters can be stressful – particularly during the coronavirus pandemic. As a result of social distancing measures, family court hearings are being conducted remotely. Here is what you need to know.
The COVID-19 outbreak has required organisations all over the world to adapt to new ways of working. Our family courts are in the same position, and as an essential service, they must adopt modern technology to continue to function. If you need to attend a remote family court hearing, it can be stressful and you might not know what to expect, so here we look at what you should know.
Lights, camera, action… signing your will goes live
Experts are warning against self-directed videos following the announcement by the Government that legislation is to be introduced in September to allow wills to be signed remotely using a live video link.
While the coronavirus pandemic continues to pose a challenge for those wishing to have their wills drafted and signed, the announcement does not loosen any of the strict requirements, but instead adds extra complications.
“Many people don’t realise the conditions that must be met if a will is to be valid,” explained Mrs Jayne Jackson, wills and trust lawyer with Rotherham solicitors Oxley & Coward LLP “The requirements are all designed to protect the individual making the will, to protect their interests and their assets, and none of that can be put in jeopardy. Where someone is elderly or unwell, a professional may need to verify their capacity to make decisions and help guard against fraud, undue influence, or even identity theft. A specialist will also check if someone is leaving themselves open to claims on their estate by excluding anyone.”
The move to live video witnessing has been taken on a temporary basis, to enable those needing to make their will to do so while the pandemic continues, particularly those who may be most vulnerable and continuing to self-isolate. But the long-standing rule that the signing and witnessing of a will must take place with the person making the will and the two witnesses all present at the same time, still needs to be satisfied.
“In many ways, the video route places an additional burden on those making and witnessing the will,” added Mrs Jayne Jackson. “It must be a three-way live video call for each signature, with each individual able to hear and see each other as they make their signature. I would also recommend that after each person has signed that they hold the signed page up, directly to camera, and confirm the action by saying they have done so.
“An accurate record needs to be kept, giving reasons why the method was adopted, and addressing the factors which must be covered when making a will, such as having sound mental capacity, if you are to avoid a challenge to the will at a later date.”
Inevitably there will be a greater risk of wills being challenged, either to argue that the signing did not follow the procedure correctly, or because of the potential for abuse and undue influence, but the move to video witnessing has brought other concerns as well.
One is the inevitable delay while the will is sent around for signature, particularly where the person making the will is in ill health and could die during this time. There are also concerns over a will being lost or damaged in the post.
Another is confidentiality, which may be an issue when the will is being sent to witnesses. Their role is simply to witness the signature, and they would not usually have access to the document to read it, but it will be harder to avoid that with remote witnessing. It means that witnesses must be chosen with more care than usual.
“Also remember that the two witnesses must be over the age of 18, and anyone who stands to benefit from the will cannot be a witness, or their spouse or civil partner,” said Mrs Jayne Jackson , “and ideally the will itself should record the fact that this form of witnessing has taken place, with a modified clause covering this and confirming whether a recording has been made.”
How live video witnessing works:
The witnesses in a video signing must have a clear line of sight of the person’s face and their hand as they sign their will; it must be done live and cannot be pre-recorded to send to the witnesses.
Once the person making the will has signed, the original document must be taken or sent to each witness as soon as possible. When it arrives, the same process must be followed, with a three-way live video link, where each can see and hear the witness as they sign. As each person signs, the others should acknowledge verbally that they have seen the signing take place.
While there must be a live video link for each signature, it is recommended to record each stage of the signing and this be kept with records outlining why the video witnessing was undertaken.
The new law will be backdated to include wills that were witnessed via video from 31 January 2020 and will remain in force until January 2022 and will also apply to any codicil made to a will.
Looking to make a Will during #COVID19? Read about some considerations you might want to make here: https://bit.ly/3cu9FIX #LaterLife #EstatePlanning
Are you, or an elderly relative, feeling anxious about #Coronavirus? @age_uk has put together advice to help look after your mental health during the #COVID19 pandemic. Read it here: https://bit.ly/2VB901h
Are you looking to get your #LaterLife legal documents in order? Make sure you look out for an @SFELawyers accredited member, who can put you at ease when dealing with important and complex decisions. https://bit.ly/2KpAkL3 #EstatePlanning #ElderLaw
Locking up the legalities when planning ahead in the virus crisis
NHS workers fighting Covid-19 on the front line, together with the elderly and vulnerable, lie behind a huge spike in demand for will writing over recent weeks, according to the professional body for solicitors.
The Law Society says many firms have reported a 30% increase, as a result of worries about the coronavirus pandemic, but the lockdown and self-isolation are creating new challenges in getting the wills drafted and signed while still complying with legal requirements.
There has been a surge in people looking to set up powers of attorney as well, to enable others to act on their behalf in managing their financial, property and other affairs, but that is also proving a challenge during the current crisis.
“It’s important to get it right when dealing with vital documents involving your assets,” explained Jayne Jackson, wills and trust expert with Oxley & Coward Solicitors LLP. “There are issues around demonstrating that someone has the ability to make such decisions if they are elderly or unwell, as it is likely to be difficult to get a doctor to verify their capacity with the current pressure on the NHS, which may be needed if the will or power of attorney is later to stand up in court.
“In such situations, the ideal is to sit down with the person face to face to get a sense of how they articulate their choices and to be sure the outcomes are what they really want, whether deciding who will inherit through their will, or appointing attorneys to manage their affairs.”
In today’s climate, such discussions are more likely to be by telephone, email or possibly video conferencing, particularly where someone is ill, but if an independent professional is involved, there is a greater chance that wishes will later stand. They will check if you are leaving yourself open to claims on your estate by excluding anyone, and advise on the appointment of attorneys, to be sure they are fit for the task and understand their responsibilities and how they will be held accountable.
A professional can also help to ensure that the will or power of attorney is legally binding, as the actual signing and witnessing of a will remains an exception to the recent shift towards accepting electronic signatures on contracts and many deeds in England and Wales.
While live video witnessing in such situations is under discussion, the current rule is that anyone making a will must sign in the presence of two witnesses, who must in turn sign in the presence of the person making the will. Physical presence is essential but presents a real challenge given the present regulations requiring social distancing, particularly as anyone who is a beneficiary will lose their gift under a will if they witness it. It means that immediate family members, who are most likely to be available, cannot be a witness if they stand to inherit anything.
Even witnessing from the next room or through a window might be challenged as not being formally in the presence of the person making the will, although in a case that went to court almost 250 years ago it was agreed to be sufficient to have two witnesses who are in line of sight even though they were not in the same room. (Casson v Dade 1781)
“It’s very difficult to avoid all contact,” explained Jayne Jackson. “Many solicitors are going through documents and then overseeing the signing through a window, but some advice suggests that the virus could survive on paper for up to 12 hours, so that it could be transferred from person to person just by handling the draft will, which is a worry. It’s important to recognise that, and use sanitiser, gloves and separate pens to protect someone who is likely to be vulnerable, or where someone is already infected.”
Why make a will?
Research shows that half of all adults in the UK do not have a will in place, with the figure rising to almost 60% among parents.
Many avoid making a will because they imagine their assets will go automatically to their partner, or that their family will be left to decide how to make the distribution. But without a will, the intestacy rules come into play, which govern how a person’s estate is distributed if they die ‘intestate’.
The rules have a strict order of distribution and do not provide for any cohabiting partner, irrespective of the length of the relationship. They also allow children under 18 to receive assets without any control over how the money is spent.
Having a will setting out what you wish to happen if you die before your children are 18 is the only legal way to be sure they will be provided for and brought up in the way you wish, with the guardians you choose.
If you drew up your will before getting married, it is automatically invalidated on marriage, unless it was drafted in expectation of the ceremony. And if you are in the process of getting divorced, any existing will remains valid until the decree absolute is confirmed, even if you have separated or received your decree nisi, meaning the spouse you are divorcing would benefit if those are the terms of your existing will.
Equally, if you do not have a will and something were to happen to you before the divorce is completed then the intestacy rules would apply and, again, it would be the spouse you are divorcing who would benefit, not your children or a new partner, parents or siblings. This may be the outcome you would wish to have happen, but if not, the only way to ensure that your wishes are carried out is to make a new will to cover your current situation and this can be done at any stage of the separation and divorce process.
