Top Ten Tips on how to have an Amicable Divorce

As the New Year approaches, many of us begin to question how happy we are in our lives and in particular our marriages.  If you are in the process of separating and choose to separate or divorce, Kerry Rowell of our matrimonial team offers some tips on how to keep things amicable.

1. Remember that both of you are grieving the loss of the relationship and that no two people grieve the same way.  Respect each other’s feelings and this will form the foundation stone of your divorce or separation.  If an apology is required at any point give it at the earliest opportunity.
2. Appoint a solicitor as soon as possible.  An experienced family solicitor who understands your aims and wishes is vital in any divorce, and in doing so can limit emotional confrontations between you.  Involving them at the outset means that you will be guided immediately on the best way to keep things amicable with your ex-partner. 
3. Do not involve your children in your divorce or separation.  As adults, children will gain a perspective on why your marriage ended, and as children they do not need to be burdened with these adult issues.
4. Remember that children love their parents equally.  Do not make negative comments about each other or force them to ‘take sides.’
5. According to the law, it is the best interests of the children which come first in proceedings before the Court.  No parent has more of a claim over time with their children than the other.  All parents are equal.  One parent asserting and demanding their own wishes over arrangements for children, without the agreement of the other parent, can cause irrevocable damage to your relationship not only with your ex-partner but also with your children.
6. Keep communications between you positive.  Walk away from any communications which become confrontational.  If you feel aggrieved about an issue, discuss it with your solicitor who should be able to offer a balanced view, appropriate support and advice.
7. Issue divorce proceedings at the earliest opportunity after you have decided that there is no possibility of reconciling the marriage. This may sound harsh but it provides each of you with certainty, and to some extent the children that the marriage is at an end and you can each move on with your lives.  We find this reduces, for example, resentment.
8. Resolve financial matters as swiftly as possible and be guided by your solicitor on what is a reasonable financial settlement.  You will need to remain flexible to achieve this.
9. Make financial information available to each other as soon as possible.  Your solicitor will tell you what information is required and then negotiate on your behalf or assist you in doing so, so as to reduce any opportunity for conflict.
10. Remember whenever possible that the ending of a marriage can also be the beginning of a new life. Stay positive.  The way you feel will change, ask your solicitor.  They’ve been through it before, with lots of people just like you and do understand.         

Kerry Comments “By following these tips wherever possible, you really can achieve an amicable separation and hopefully reduce the inevitable conflict caused when people separate.”
If you have any queries relating to this or any other family or matrimonial issues then please contact Kerry Rowell or Averil Ballam on 01603 666001.  

Carrying out a Redundancy exercise

Welcome to a special issue of our employment law bulletin. It’s an overview of redundancy and of the steps employers must take to get the process, and their decisions, right.

What is redundancy?
Redundancy is essentially where you:
(a) close your business;
(b) close a workplace; or
(c) need fewer employees to do a certain type of work, or to work in a certain place.

Many employers use the word ‘redundancy’ to describe a redundancy where someone’s performance is drifting off a bit, or because they think if they call it ‘redundancy’ then they don’t need to go through the procedures they know exist for misconduct issues. But that can cause problems, because if the dismissal isn’t technically a ‘redundancy’ – as defined above – or you don’t follow the correct redundancy process, you can end up struggling to defend an employment tribunal claim.

So you need to get it right. This begins by getting to grips with the situation in which you find yourself, and understanding what redundancy means. Employers can come unstuck when they assume that they are in a redundancy situation when they’re not, and vice versa.

If any one of the three situations above apply, you’ve passed first base. You can begin the redundancy process. But the rules on how you should go about this, and the steps you need to take, are strict. Even if you are clear that you have a ‘redundancy’ reason for dismissing staff, the dismissal can quite easily become unfair if you trip up at any of the stages.

Remember that redundancy rules only apply to your employees. They do not apply to agency workers, or self-employed contractors, for example.

There are also special rules which apply if you’re thinking about making more than 20 people redundant within a rolling 90-day period. They including notifying the Department of Business, Innovation and Skills, and holding consultations with a union (if you don’t recognise a union, you have to hold an election for employee representatives). These rules are demanding, complex, and carry serious financial consequences if they’re not followed. Please speak to us if you are concerned that you might be making more than 20 people redundant within a rolling 90-day period and we’ll help you through the process.

Think through the process
Plan the redundancy before you start. Map out the steps, the timings and the people from within your business’s management that you will need to involve. Remember to take and keep good, written records of what you’ve done and how you reached your decisions. There really is no substitute for this.

Factor into the planning process your contracts and policies. Check to see what they say about redundancy, both in terms of company procedure and redundancy payments. You must comply with your policies (or have a very good reason for departing from them). You will also need to underpin every aspect of your planned redundancy process with ‘reasonableness’, since tribunals are ultimately looking to see if you’ve acted reasonably in every aspect of the dismissal process. In the redundancy context this broadly means letting staff know where they stand; listening and taking on board suggestions; being fair in who you select for redundancy; looking hard for suitable alternative jobs within your business for people who are facing redundancy; and offering a meaningful appeal against dismissal.

There are different ways of going about this and if you are making only a small number of redundancies, there’s no rigid regime that you must follow. There are rules and pieces of guidance to follow but you have some freedom to design a redundancy process around your business and its circumstances.

Define your pool
You may have heard about ‘redundancy pools’ and ‘pools for selection’. These are terms for the groups of people identified as being potentially redundant. Not all will necessarily be made redundant. You will select from these pools the employee or employees who you’ll take through the remainder of the process and who you might, ultimately, dismiss for redundancy.

Sometimes it will be easy to decide which employees should make up a pool. There may be just one person whose role has disappeared, in which case they alone can form the pool and no one else need usually be involved. It’s less straightforward if you have people whose roles cross departments, specialisms, projects or contracts, and locations, for example.

Once you have defined the pool, write to the affected employees and tell them that they are at risk of redundancy. It’s quite common for employers to meet with these employees collectively. Explain why you’re doing what you are doing and invite ideas about ways of reducing the number of people who might ultimately be made redundant, or about ways of avoiding redundancy altogether.

And follow up on suggestions; there could be options available to you that you hadn’t thought about. This doesn’t mean you have to follow your employees’ suggestions – far from it – but you do need to have a credible reason as to why it doesn’t make business sense to follow their suggestions. One of the most common reasons why redundancy dismissals are held to be unfair is that the employer can’t establish that it followed up on suggestions about avoiding redundancy.

Select
You need to have fair selection criteria, against which you can ‘score’ employees in the pool (and those with the lowest scores will be those whom you select for redundancy).
What sort of selection criteria should you use? Length of service, attendance, experience & skills, disciplinary record and performance (where it can be measured objectively) are fairly standard, but it’s up to you to decide the categories that matter most. You are free to give different weightings to different criteria, but be clear and consistent in how you do this.

One of the biggest rules around selection is to avoid anything that requires you to make a subjective assessment. Your opinion of how reliable an employee is, for example, isn’t a valid criterion. You should be able to show how you arrived at the score you did, and that it’s backed up by records you hold – appraisal notes, for example.

Be careful to avoid straying into the realms of discrimination. Selecting an employee for redundancy because you think they’re too old, or too young, will be direct discrimination. Dismissing someone because they are pregnant or on maternity leave will be automatically unfair. But there are less obvious discrimination traps too. Tread carefully where you are using ‘last in, first out’ (‘LIFO’) as a scoring mechanism. It may seem like the fairest way to select staff, but it can be tainted with age discrimination (and sex discrimination too), so you would be risking an unfair dismissal and an indirect discrimination finding against you unless you combined LIFO with other objective criteria.
Scoring people on their attendance, too, can cause difficulties where the employer doesn’t take account of the reasons for an employee’s low score. Maternity leave and disability-related absence are common reasons to bear in mind.

That said, people with a protected characteristic (age, sex, disability, religion/belief, sexual orientation etc) are not immune from selection for redundancy. You will, however, be expected to not treat them any less favourably than their colleagues. The same applies to part-time workers, who have a right to not being treated less favourably treatment than full-timers. So it is unwise to focus on part-time employees, or those who have flexible working agreements, as those to be dismissed during a redundancy process.

Consult
As a pre-cursor to consultation, it is usually worth asking whether any of the employees in the pool would be interested in applying for voluntary redundancy. Remember that if you ask for volunteers, their dismissal will still be for redundancy and so they’re entitled to the usual payments and other terms.

Treat compulsory redundancy as the last resort. You should allow plenty of opportunity for people within your organisation – including the employees directly affected – to come up with ideas of ways to avoid redundancy dismissals. (Don’t forget to consult with those who are absent from work.) Sharing information with employees and inviting them to give their views can sometimes lead to solutions that reshape the proposed redundancy. Perhaps part-time working, salary sacrifices or adjusting your use of agency workers, for example, could provide solutions.

We mentioned earlier that there are specific rules that apply if you are proposing to dismiss 20 or more employees within 90 days. If the number is lower than 20, you still need to consult, but it’s not governed by legislation in the same way. Don’t take that to mean that consultation can be skirted over in cases of smaller-scale redundancies; it’s regarded by tribunals as a really important part of a fair redundancy process.

Write to the employees you’ve provisionally selected for redundancy. Tell them that dismissal is a possibility and that you would like to meet with them individually to discuss:
- their selection
- their selection score
- any ideas they may have for avoiding redundancy
- alternative roles you may be able to offer them.

You don’t have to allow employees to be accompanied at these meetings unless your contracts or policies say so, but if they ask to take a colleague or a union representative along, you should allow it.

Show the employee their selection score and explain how you arrived at it. They’ll probably question aspects of this, so be prepared to explain your reasoning and even to adjust your scoring if need be. You won’t usually be required to share with the employee their colleagues’ scores, but it can sometimes help to resolve concerns. The best course of action is usually to wait until the employee takes particular issue with your scoring. Anonymise the scores of their colleagues, making sure that individuals can’t be identified, and share them in that way.

Suitable alternative employment
You have a duty to look for suitable alternative employment for employees who you’re about to make redundant. This duty is an ongoing one, lasting until the employee has been dismissed.

The duty is to look for another role that is suitable. This doesn’t mean that you necessarily have to offer the employee a role – perhaps there just isn’t anything suitable – but you must look and you shouldn’t assume that the employee wouldn’t be interested in taking a lower grade position. Your idea of suitable may be different to theirs, hence there are frequent legal arguments about when this duty has, and hasn’t, been met.

One significant point to bear in mind here: if the potentially redundant employee is on maternity or adoption leave then they have a special entitlement when it comes to offers of suitable alternative employment (generally, they trump other employees). This is an area where you should take legal advice.

Dismiss?
Once you have gone through the full process and have decided there is no option other than to make the employee redundant, you should meet with them to confirm this. Write to them, too. Your letter should set out the terms on which they’ll leave. These include, if they have at least two years’ service, a statutory redundancy payment and other contractual entitlements – enhanced redundancy pay, or holiday pay, for example.

You also need to offer a right of appeal. Just as in a disciplinary dismissal scenario, appoint a new (usually more senior) appeal officer, listen to the employee, and adjourn to consider everything and to explore any new avenues that may have opened up. Then either reverse the dismissal decision or confirm it in writing.

You may want to consider negotiating a settlement agreement to buy out claims that the employee has and to draw a line under their employment.

Summary
Redundancy is often complex. It’s intensive, there’s a lot to it and it challenges employers on many levels. And because it is about the application of broad rules to very specific facts – and an overarching requirement to be fair and reasonable – there is always the potential for employees to make an argument that their redundancy was in some way flawed.

That is why we work with clients to advise from start to finish, making sure that they make the best decisions, legally and commercially.

Call us on 01603 675603 or email pnk@rogers-norton.co.uk   

Top Tips

• Do everything you can to avoid having to make staff redundant. You may have options; take them seriously.
• Get to grips with what redundancy means in law, and what it would mean for you and your employees.
• Check redundancy provisions in your contracts and policies.
• Do the maths. Be clear about the costs and the benefits.
• Be prepared. Plan the redundancy thoroughly before you embark on it.
• Keep an open mind throughout. Don’t pre-judge and don’t be seen to have made up your mind about anything before you’ve taken the necessary steps.
• Consider all potential ramifications of your decisions before you make them. You could discriminate unwittingly.
• Level the playing field to avoid less favourable treatment.
• Continually ask yourself: is this the reasonable thing to do? Remember that a legally safe redundancy requires (a) a genuine redundancy situation; and (2) a fair process.
• Keep good notes of everything, including your thought processes. Seemingly insignificant details can win and lose cases.

Over £10,000 raised for Macmillan cancer support!

We are delighted to announce that after 17 years of arranging this event, we have actually raised over £10,000.00 for the first time for Macmillan Cancer Support at the Rogers & Norton Charity Golf Day in September.  This is due in no small part to the amazing support and assistance of Companies and supporters that we receive on a regular basis and for which we are extremely grateful.

 

120 golfers enjoyed the facilities at Barnham Broom Golf and Country Club on the testing Valley course followed by a dinner in the evening with additional guests attending.  The money was raised from entry fees, a raffle and an auction plus sponsorship of various parts of the day.  There are far too many people to thank individually but special mention must be made of the Golf Club for their invaluable assistance and Barclays Bank for pound matching an amount of £1000.  

Everybody contributed to the success of the day and even the staff at Rogers & Norton baked cakes during Coffee Morning Week to sell to the staff and clients to help raise funds  and a cheque for £10,062.34 has been presented to Shaun Campbell, the Regional Manager for Macmillan by Staff of Rogers & Norton and Barclays at Barnham Broom.

For further information about this, or other Rogers & Norton events, please contact Graham Knights on 01603 675618 or gjk@rogers-norton.co.uk or visit our website at www.rogers-norton.co.uk.

Introducing our new trainee Solicitor...

We are pleased to announce the arrival of a new trainee Solicitor, Charlotte Ranson.

Charlotte was brought up in Norfolk, attending schools in Norwich and Wymondham. After graduating from the University of East Anglia with a first class degree in Law in 2014, she continued her legal studies by completing the Legal Practice Course in Cambridge and alongside this volunteering at Citizens Advice as a Gateway Assessor.

Charlotte is spending her first six months with the firm in the Commercial department.

Small claims court law reforms

In his 2015 spending review, Chancellor George Osborne has vowed to reform the law relating to Personal Injury practice by raising the Small Claims limit to £5000.00 from its current level of £1000.00. In the small claims court cases are generally pursued by the parties acting in person, not least as a result of the restrictions on the court to award their costs to the winning party.  Although the small claims court limit has been set at £10,000.00 since the 1st April 2013, claims involving Personal Injury with a value over £1000.00 have been excluded and in 2013 it was acknowledged by the Government that there was no justification to increase the  limit in respect of Personal Injury claims.

The chancellor’s justification for his announcement is that this will provide significant savings to the insurance industry who generally underwrite such claims and he estimates a saving of £40.00 to £50.00 per household each year that he expects the insurers to pass on to consumers. This of course remains to be seen as following earlier reforms there is no clear evidence that insurers have passed on premium savings.

There is a real risk that this change if implemented will lead to a significant imbalance in power between the parties in a Personal Injury claim and quite possibly lead to legitimate claims not being pursued or being in appropriately presented. If the limit for Personal Injury claims is raised to £5000.00 then a vast proportion of Personal Injury claims will be subject to a system of very low fixed costs which will make it either impossible for the client to instruct a solicitor to pursue their claim, or use a proportion of their damages, intended to compensate them for their pain and suffering, to fund their legal costs.

Commenting on the proposed reforms Mark Hambling, director of Rogers & Norton and a senior litigator accredited by the Association of Personal Injury Lawyers commented as follows. “The biggest fear is that innocent victims of accidents will be forced to fight claims themselves when faced with an insurer who has a limitless legal budget. As a consequence their is a real risk that many legitimate Personal Injury claim may fail, be settled at an undervalue or not pursued at all, as a result of the innocent victim not having the benefit of legal advice, given the inability of recovering the costs of seeking that advice.”

Although many personal injury claims will fall outside of the £5000.00 ceiling, that does not mean that those claims below the limit are any less meritorious and therefore the victim, who will often need there compensation to cover medical expenses and loss of earning, should not be deprived of their compensation or forced to use a proportion to fund their legal costs, which in the absence of this change would be recoverable.

It is therefore important that the voice of innocent victims is heard when the government consults on these changes in 2016 and Rogers & Norton intend to insure the voice of the innocent personal Injury victim is presented.

Mark Hambling is a director in Rogers & Norton’s Personal Injury team and an Accredited Senior Litigator with the Association of Personal Injury Lawyers.  He can be contacted on 01603 675637 or by email at mbh@rogers-norton.co.uk.

Consent in Clinical negligence Cases

 

Montgomery v Lanarkshire Health Board [2015] UKSC 11 has been decided this year by the highest court in the country and has transformed the law on consent in cases of clinical negligence.
The starting point for consent cases is to remember that in law any form of intentional trespass to a person without consent is a claimable as a tort, known as battery and could be a criminal offence as well. As such when a doctor operates on a patient it is crucial that consent is obtained in most cases, and this explains why during a course of treatment the patient will be asked to sign a form of consent to the treatment. 

In relation to consent it is therefore crucial that a doctor explains the various risks to the patient to ensure they are properly informed and able to make an informed decision. In those circumstances, if the patient has not been given that information or has not been given sufficient information then a claim in negligence can be pursued if it can be shown that but for insufficient information being given, the patient would have made a different decision or perhaps reflected and had the surgery at a different time.

The Montgomery case concerned the extent of the duty on a doctor to provide informed consent to treatment. Prior to Montgomery the case of Sideway v Board of Governors of the Bethel Royal Hospital [1985] was the main case authority and held that the party bringing the claim had to show that the information provided to provide consent “fell below that which would have been provided by a responsible body of medical practitioners”.  This meant that if a doctor defending a claim in negligence could show that a reasonable body of doctors doing the same procedure would have done the same, then he had not been negligent and the claim should fail, regardless of the fact that not all doctors would have done the same.

If we fast forward 30 years to 2015 and Montgomery, seven Law Lords sitting in the Supreme Court have overturned the decision in Sidaway, acknowledging that the manner in which healthcare services are now provided and the way in which patients view their relationship with their doctor has changed. In the leading judgement it was acknowledged that the legal position now is that:
“A doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.  The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it”

As such, applying the facts in Montgomery, whist the doctor followed the views of a responsible body of medical opinion and did not advise of a small but serious risk which under the old law would be a defence to the claim, applying the new test the claim succeeded before the Supreme Court as it was acknowledged that the risk was one to which the patient would attach significance if informed.
As a closing note of caution it should be observed that a claim in Clinical negligence cannot succeed solely on the absence of consent. The claim is in negligence and therefore the party bringing the claim must show a duty of care was owed, that there has been a breach (possibly the absence of material information to provide consent) and that the breach of duty has caused the loss. Clinical Negligence claims can often be some of the most complex to pursue and therefore expert legal advice is crucial in relation to such claims.

Rogers & Norton Clinical Negligence team can advise on all forms of clinical dispute and offer a free initial consultation. The team can be contacted on 01603 666001 or by email on mbh@rogers-norton.co.uk or tsn@rogers-norton.co.uk.

Bye Bye Buy to Let?

The announcement in the Chancellor’s Autumn Budget indicating the Government’s plans to increase the Stamp Duty Land Tax levy against additional homes has sent shockwaves through the buy to let market. 

The proposals made are set to increase the rate of Stamp Duty to 3% on any property bought as a buy to let or a second home and have been referred to by lettings experts as ‘catastrophic for the private rented sector’. 
The unveiling of these plans comes as an additional blow to the property investor market after George Osborne’s announcement of a crackdown on mortgage interest tax relief in the Summer Budget.  

What do the changes mean? 

Currently, Stamp Duty Land Tax is charged at a rate of 2% for properties valued at between £125,000 and £250,000, the average price band that investment properties fall into.  A second property falling into this bracket will now attract an additional 3% tax. For a landlord purchasing a property at £175,000 under the new rules Stamp Duty Land Tax will sky rocket from £1,000 to £6,250.  Not a negligible sum at even the lower end of the market.  When you look a properties falling within the next price bracket (£250,001-£500,000) the stamp duty on a £300,000 would over quadruple, going from £3,000 to £14,000. 
When you consider that in addition to this hike the maximum tax relief will drop from 45% and 40% to just 20%, a landlord with a £150,000 buy-to-let mortgage on a property worth £200,000 will see net annual profits drop from £2,160 a year to just £960. 

But why now?

For a number of years now there has been growing concern about the shortage of affordable housing stock available for families and first time buyers, so much so that the Bank of England has been closely monitoring the buy to let increase.  In 2000, buy to let accounted for 4% of mortgage lending, by the second quarter of 2015 this had risen to 16%.  The Council of Mortgage Lenders reported the number of buy to let mortgages has increased by 36% over the last 12 months.  Unfortunately for the ‘average’ buyer, this all points towards a lack of affordable properties.

According to the Chancellor ‘Fifteen years ago around 60% of people under 35 owned their own home, next year it’s set to be just half of that’. 
So it would seem that the clear motivation behind this move is to effectively ‘put off’ property investors and make buy to let an unattractive form of investment. 
So what does this mean for the housing market?

In the short term it is likely that we will see a sharp increase in the number of investment properties being snapped up as investors scramble to increase their property portfolios prior to the new legislation coming into force in April 2016.  This will inevitably make house prices more sensitive and could even cause the collapse of transaction chains as we near the deadline date should completion prior to 1^st April appear to look unlikely.

Certainly in this short term this will not assist Mr Osborne’s plan of preventing investors from ‘squeezing out families who can’t afford a home to buy’.
In the longer term, the move could prove good news for first time buyers and families.  The hurdles of the increase in stamp duty, reduction in mortgage interest tax relief and also the reduction in annual wear and tear allowance will no doubt mean some landlords decide that buy to let is no longer a viable business model.    First time buyers are rejoicing at the news.  Duncan Scott of PricedOut, a campaigner for affordable housing has stated ‘we welcome the continued tax clampdown…it is good to see action against investors who price out aspiring first time buyers’.

However it may not all be good news for buyers.  The changes may result in landlords buying up lower priced properties for renovation, thus decreasing their initial tax outlay but increasing their rental yield.  This could have the affect of not only a remaining shortage of affordable but properties but also limiting the amount of new housing stock brought to market as the properties are retained for rental, as well as causing a rise in rents making it harder for first time buyers to even be able to save the money for a deposit.
Don’t forget that these changes won’t affect just buy to let landlords.  The second home and holiday letting market, which is particularly buoyant here in Norfolk, will inevitably be hit.  It is likely that at least initially this market will be inhibited by the changes as people decide against a largely discretionary investment.

So whilst on the face of it Mr Osborne’s plans appear to be the light at the end of the tunnel for those hoping to hop onto the housing ladder, only time will tell whether or not these radical stamp duty changes will indeed stamp out the UK’s housing shortage. 

---

Contact the Rogers & Norton conveyancing team on 01603 666001 or email web@rogers-norton.co.uk for more info.

Attleborough Office continues to expand

Rogers & Norton continues to expand and strengthen the Attleborough office with the appointment of two new staff members.

Wenke Lie-Critchley joins from our Norwich office to further strengthen the Private Client department.  She will be ably assisted by Laura Rumsey, who is entering the final stages of her training with Rogers & Norton.

Wenke, a chartered legal executive, brings with her many years of experience in dealing with wills and probate, and sees the Attleborough operation as a real opportunity to help and support the local community in such a vitally important area.

Wenke Lie-Critchley, Marc Greig & Laura Rumsey

---

Email Wenke on wlc@rogers-norton.co.uk or call 01953 453774 for more information.

The Importance of Wills

Following our article on the well publicised case of Ilott v Mitson (20 October 2015) in which Mrs Ilott successfully appealed to the Court of Appeal and received £163,000 from her mother’s estate despite not being named as a beneficiary under the Will, our Wills and Probate team has seen a considerable increase in clients wishing to update their wills.

In summary, Mrs Ilott was brought up solely by her mother following the death of her father before her birth.  At 17 Mrs Ilott left home to live with Mr Ilott without her mother’s approval.  She later married and had 5 children with Mr Ilott but her relationship with her mother never improved.  Mrs Ilott lived in a housing association property and her family was supported by various benefits.

Mrs Ilott’s mother passed away leaving a Will, supported by two side letters explaining her reasoning, leaving nothing to her daughter or wider family but leaving her estate valued at £486,000 equally between three charities.  The claim was brought by Mrs Ilott under the Inheritance (Provision for Family and Dependents) Act 1975 which allows, amongst other categories, children of the deceased to bring a claim upon the estate for reasonable provision.

It was found that Mrs Ilott should not be penalised for a lack of expectation of receiving anything from her mother’s estate as the charities had no expectation either as the deceased had no previous connection with the charities in her lifetime.  It was also found that the estrangement between the parties should not deprive the appellant of an award.  The appellant’s income, earning capacity and lack of pension contributed to the court’s reasoning that despite Mrs Ilott being an independent adult child she survived on such a basic level of resources that she was awarded £143,000 to purchase her local authority house.  She was also given the option to receive a further award of £20,000 from the estate to provide extra income without affecting the benefits she receives.

We have seen many clients who are now re-visiting their Wills.  It is daunting to have to plan for your death but by having a Will in place you will save your family unnecessary distress at an already difficult time.  Even if you only have modest assets, a Will enables your estate to be administered in accordance with your wishes and stops the worry and trouble that can often come with dying intestate (i.e. without a Will). 

Writing a Will is especially important if you have children as it gives you the opportunity to appoint guardians.  A number of events can affect who is able to bring a claim against an estate.  Changes in financial circumstances, marriage, cohabiting with a new partner are reasons to make and amend a Will.  Consideration should also be given about making lifetime gifts. It also allows you to achieve tax planning objectives and to consider protecting your assets from future care fees.

---

If you would like to discuss making a Will, or changes to an existing Will, please contact Louisa Shailes on 01603 675655 or email louisa.shailes@rogers-norton.co.uk.

Employment Law Bulletin November 2015

Welcome

Snowballs and open fires aside, winter isn’t all fun and games.  Dark mornings and dark afternoons pose their own mood-detracting challenges for workers and employers alike. And that’s not all.

Acas has a guide to dealing with winter’s workplace issues. It lists adverse weather, colds and flu, a flurry of holiday requests, and wellbeing in the workplace as seasonal issues that employers must carefully manage. Plan in advance, is the advice.

So, go on. Sort out your policies, get your systems in place, and grab winter by the horns. 

The meaning of ‘public’

Underwood v Wincanton

In May this year we reported the case involving the estate agents, Chestertons.
 
It was about whistleblowing; in particular, the requirement that a worker must reasonably believe that their disclosure is in the public interest in order to benefit from whistleblowing protection. The case decided that something that was of interest to 100 senior managers could be in the public interest.
Underwood v Wincanton builds on that. Mr Underwood was dismissed after he and colleagues made disclosures to their employer about the unfair distribution of overtime to drivers. He claimed that he had suffered detriment and had been automatically unfairly dismissed because he had made protected disclosures. But did the disclosures have the necessary ‘public interest’ element? The tribunal held not and struck out the claim at a preliminary stage. The complaint was about a group of workers who had an identical grievance about an aspect of their employment contracts; this wasn’t in the public interest, the tribunal said.

By the time the case arrived at the Employment Appeal Tribunal (EAT), the Chestertons case had been decided. It was clear that ‘public’ could be a subgroup, even if made up only of people employed by the same employer on the same terms. So the EAT reached a similar conclusion in the Underwood case: it is at least possible for a matter to be in the public interest even if it’s only about a contractual dispute between a group of employees and their employer.
The upshot is that the claim will now proceed and it will be for the tribunal to decide the outcome. The EAT made reference to the fact that the Chestertons case is being appealed, and that until that hearing takes place in October 2016, its conclusions should be followed. So, for now at least, workers who disclose information in the right way about a breach of their (and their colleagues’) employment contracts could have whistleblowing protection.

Zero hours guidance

Does your business rely to some extent on casual labour? If so, you may well be using zero hours contracts. They can be really useful, flexible ways of covering things like staff illness, seasonal work, projects and ‘on-call’ duties.

But you won’t have failed to notice that zero hours contracts have been in for some criticism recently. A huge bone of contention has been around exclusivity clauses; terms within these agreements that stopped workers topping up their (fluctuating) earnings by working elsewhere. Now that these clauses have been banned, zero hours contracts have clawed back some popularity. But are you comfortable about when and how to use them?

 This guide from the Department for Business, Innovation & Skills should help.
It has some really clear pointers about appropriate and inappropriate use. It’s also good on best practice and on alternative arrangements that you could put in place.

And, while we’re on the subject, the Government has published draft regulations (the ‘Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015’) which could thwart employers who ignore the ban on exclusivity clauses. Yes, these clauses will be unenforceable and, yes, employees could choose to take no notice of them. But the regulations will offer certain specific protections for people working under zero hours contracts:

- The dismissal of an employee (however long they have been employed) will be unfair if the reason, or main reason, is that they didn’t comply with an exclusivity clause; and
– The right for workers to not suffer a detriment because of failure to comply with an exclusivity clause.

In a group to TUPE?

Inex Home Improvements Ltd v Hodgkins

Where an organisation is to take over the delivery of a service, workers who currently do that work sometimes transfer over to that new service provider. It’s a fundamental rule of TUPE. However, only workers who are assigned to an “organised grouping of employees” make the move. And that was the key point in this case.

Mr Hodgkins was employed by Inex. Work was subcontracted to Inex in tranches by a company called Thomas Vale. There was a pause in the work supplied and Inex laid Mr Hodgkins and some of his colleagues off under the terms of a construction industry national agreement. It was a temporary stoppage and Inex continued to employ them.

 When Thomas Vale issued its next batch of work (which was pretty much the same work as Inex had previously completed), it went to a different subcontractor. Had Mr Hodgkins and colleagues transferred to that new subcontractor?

The tribunal held not; they weren’t an organised grouping working on Thomas Vale’s contract immediately before the service passed to the new subcontractor. The Employment Appeal Tribunal took a different view, however. Just because there has been a temporary absence from work, or work has stopped, that doesn’t mean that there can’t be an organised grouping of employees who had been involved in the relevant activities. They don’t have to have been engaged in those activities immediately before the transfer.

Gender equality

As part of moves to close the gender pay gap, the Government has announced that larger employers – those with more than 250 employees – will be forced to publish details of the bonus payments they make to male and female staff. This is expected take effect in the first half of 2016.
Other measures will include requiring the public, as well as the private and voluntary, sector to publish average pay details for male and female staff. The Government also wants to eliminate all-male boards in the FTSE 350.

Details of the rules on pay reporting will be published in new regulations. In the meantime, the provisions are being hailed by some as a start. The TUC General Secretary, Frances O’Grady, said, “Employers need to look at why women are still being paid less than men and do something meaningful about it.”

The sleepworking conundrum

Shannon v Rampersad (T/A Clifton House Residential Home)

Is a worker working when they’re on-call but not… working?

 Mr Shannon was an on-call night care assistant. It meant that he had to be present in the care home (which, significantly, was also his home) throughout the night to help the designated night care assistant. In reality, help was rarely needed.

Did all those night time hours constitute working hours, even though he slept during them? The tribunal held that he was only working when he was called on to help the care worker. As he was already being paid the National Minimum Wage for those times, he lost this aspect of his claim. The Employment Appeal Tribunal upheld that decision.

It’s important to remember, then, that just because a worker is at their place of work, it doesn’t mean that they are ‘working’. The usual rule is that if someone is available at or near work to do salaried work and is required to be available for work, then those are working hours. But, as this case has highlighted, it’s different where the worker is spending time at home. Then they’ll only be working when they are “awake for the purpose of working”.

It can be a difficult legal area to navigate and, as it’s so fact-specific, there’s plenty of scope for argument.

Companies have feelings too

EAD Solicitors v Abrams 

An interesting take on the concept of associative discrimination.
Mr Abrams was a member of a limited liability company and was due to retire at 62. He set up a limited company (he was the sole director) which then took his place in the LLP. The limited company was entitled to the profit share that Mr Abrams would have received directly, had he still been a member of the LLP. The company agreed to provide services of an appropriate fee-earner to the LLP.

The LLP didn’t want Mr Abrams to do the work after the time at which he’d normally have retired. On its face, age discrimination. But could the limited company claim discrimination on the basis of detrimental treatment because of its association with someone who had a protected characteristic?
Yes, said the Employment Appeal Tribunal. It’s not just individuals that are protected under the Equality Act. The law is about discrimination by one person against another person – and ‘person’ includes a limited company. As associative discrimination is well established when it comes to individuals’ claims, companies may also be protected.

And finally…..

Telecoms company TalkTalk has been the talk of the town for all the wrong reasons lately. But when it comes to protecting data, it’s not just hackers that businesses should fear. The problem can come from within, as supermarket chain Morrisons discovered. It’s being sued by 2,000 members of staff after its former company auditor uploaded the personal and financial details of nearly 100,000 Morrisons workers to a file-sharing site.

The auditor was jailed, but that didn’t put the business’ problems to bed. Far from it. Staff are claiming that Morrisons didn’t do enough to protect their data. The supermarket is reported to be denying liability for the actions of a rogue individual.

As every business knows, the stakes are high where personal information is concerned. Serious breaches of the Data Protection Act can attract fines of up to £500,000. And then there are claims and reputational damage to factor in – which, in some cases, hit hardest. We’ll have to wait and see how this one pans out. 

R&N Winter Wonderland Charity Ball Auction

Please visit our website for details of the R&N Winter Wonderland Charity Ball Auction....

http://rogers-norton.co.uk/winter-wonderland-charity-ball-auction/

Increase in instructions as business and individuals stock up for their Christmas trade

Rogers and Norton’s HMRC and Border Force team have reported an increase in instructions as business and individuals “stock up” for their Christmas trade. 

Peter Hastings comments “In the past few weeks, we have had a flurry of instructions from clients who have had their goods (alcohol and tobacco/cigarettes) seized at various locations throughout the UK. If HMRC’s officers consider the goods are for commercial purpose, for example if  the quantity exceeds the recommend guidelines of 1kg, they could seize the goods and also the car that has been used to transport the goods. We are challenging a number of seizures by way of condemnation proceedings, and  seeking the restoration of goods by way of Review and to the First Tier Tax Tribunal. In particular, we are contending that the seizure will cause hardship and that exceptional circumstances apply”.

 Peter adds, “We are  also challenging seizures for goods imported for the Christmas toy market, which HMRC have seized on the suspicion that there is some form of irregularity such as the documentation has discrepancies or the purchase cost is too low or the tariff is disputed. Recent seizures include goods valued at £60,000 and £75,000”.

The team is also busy on other HMRC and Border Force matters. Recently,  the team has been instructed to seek a VAT refund for a client in excess of £3 million, and is challenging a number of assessments where the tariff code is disputed, VAT and Duty issues, Anti-Dumping claims, and also Notices for Security under Paragraph 4 (2) a of Schedule 11 to the Value Added Tax Act 1994. The team is able to assist with both civil and criminal investigations instigated by HMRC, the appointments of Provisional Liquidators, appealing the refusal to register an applicant as an owner of excise goods under the Warehousekeepers and Owners of Warehoused Goods Regulations 1999 and Alcohol Wholesaler Registration Scheme (AWRS).

For more information contact Peter Hastings on 01603 675603 or peter.hastings@rogers-norton.co.uk.

Court of Appeal Reviews Beneficiaries’ Rights

Court of Appeal Reviews Beneficiaries’ Rights

 

In the recently well publicised case of Ilott v Mitson,  Mrs Ilott successfully appealed to the Court of Appeal and received £163,000 from her mother’s estate despite not being named as a beneficiary under the Will.  The circumstances of this case are further surprising as Mrs Ilott had been estranged from her mother for the majority of her adult life despite three attempts at reconciliation.

Family Circumstances

Louisa Shailes of our Private Client team explains; “ Mrs Ilott was brought up solely by her mother following the death of her father before her birth.  At 17 Mrs Ilott left home to live with Mr Ilott without her mother’s approval.  She later married and had 5 children with Mr Ilott but her relationship with her mother never improved.  Mrs Ilott lives in a housing association property and her family is supported by various benefits.

Mrs Ilott’s mother passed away leaving a Will, supported by two side letters explaining her reasoning, leaving nothing to her daughter or wider family but leaving her estate valued at £486,000 equally between three charities.

Judgment from Court of Appeal

Peter Hastings of our litigation team comments “The claim was brought by Mrs Ilott under the Inheritance (Provision for Family and Dependents) Act 1975 which allows, amongst other categories, children of the deceased to bring a claim upon the estate for reasonable provision.
It was found that Mrs Ilott should not be penalised for a lack of expectation of receiving anything from her mother’s estate as the charities had no expectation either as the deceased had no previous connection with the charities in her lifetime. It was also found that the estrangement between the parties should not deprive the appellant of an award.

The testamentary wishes of the deceased has been limited by Parliament as they have “entrusted the courts with the power to ensure, in the case of even an adult child, that reasonable financial provision is made”. The court felt that the limitation on the award for an adult child being limited to provision by way of maintenance was enough to balance the testamentary wishes of the deceased with the needs of the appellant.

The appellant’s income, earning capacity and lack of pension contributed to the court’s reasoning that despite Mrs Ilott being an independent adult child she survived on such a basic level of resources that she was awarded £143,000 to purchase her local authority house. She was also given the option to receive a further award of £20,000 from the estate to provide extra income without affecting the benefits she receives”.

Conclusion

Louisa Shailes adds “Despite the somewhat surprising outcome of the case, it is important to remember that the award made was specific on the facts of this case.  It is clear from the judgment that the court considered all factors set out in Section 3 of the Inheritance (Provision for Family and Dependants Act) 1975 in making their award and therefore there is no new law in the case.  It does, however, appear to show that the court will consider family members claims despite testamentary wishes and consider their maintenance needs”.

It is always important to consider any potential claims upon your estate despite the general rule that you can leave your estate as you wish.  If you would like to discuss your Will and any of the above issues with one of our private client team, please contact Louisa Shailes (louisa.shailes@rogers-norton.co.uk) and for advice on seeking to challenge a Will, please contact Peter Hastings (peter.hastings@rogers-norton.co.uk).

Court Allows Divorce Settlement Appeals

 

The Supreme Court recently unanimously ruled in favour of two women who made applications to set aside orders made by the court in their divorce settlements.

Alison Sharland and Varsha Gohil both alleged that their husbands had, at the time the order was made, been dishonest about their financial position.  As such they argued that they had received an unfair financial settlement than they might otherwise have received if the true financial position had been known.

In Mrs Sharland case she was married for 17 years to the founder of AppSense.  They were able to reach an agreement on their financial settlement but following the divorce she discovered that he was worth significantly more than she had been told.  Further, she also discovered her husband planned to float the company on the stock market.  Mrs Sharland appealed to overturn her settlement but was not successful because the Court felt it unlikely she would have received a higher award.

Meanwhile, Varsha Gohil discovered two years after her divorce that her husband had been untruthful about his financial position when he was arrested for fraud and money laundering.  The Court refused to allow the criminal evidence to be used and to overturn her settlement.

In Mrs Sharland’s case the Supreme Court decided she had been deprived of her right to a full and fair hearing and in Ms Gohil’s case they decided there had been an ‘erroneous approach’ to the application of the admissibility of the evidence.

Therefore both applications should be allowed to proceed.  Kerry Rowell comments
“These decisions have created speculation in the media about opening the floodgates to other such applications.  In fact what they have done is to ensure that justice comes first and that justice is about having a fair hearing in every respect.  If you provide dishonest or misleading information about what your assets are, this is a clear indication that your husband or wife can go back to court”

If you require advice on any of the above or any matrimonial matters, please contact Kerry Rowell or Averil Ballam in our matrimonial department on 01603 666001.  Or email kerry.rowell@rogers-norton.co.uk or averil.ballam@rogers-norton.co.uk.

Employment Law Bulletin October 2015

Welcome

The Rugby World Cup 2015. A meeting of minds, muscles and mauls.
But for all the enthusiasm it generates, the tournament is another workplace distraction for employers to manage. Time off to watch matches; calling in sick to nurse a hangover. The reality is that entire workforces are being swept up in the excitement and businesses are having to try to keep up.
That is unless you’ve got a strategy worked out. For lots of employers, this means tackling the issues head-on: letting staff know what is and isn’t acceptable, and dealing properly with those who abuse the rules. But perhaps the real winners are those employers who recognise that this is an event that’s bound to spark interest and which has the potential to boost staff morale. They know it’s once every four years.  This time it’s close to home.  And they get involved.

October changes

October (along with April) is always a significant month for employment law. It’s when changes take effect. These include, from 1 October 2015:
- An increase in the National Minimum Wage from £6.50 to £6.70 per hour for those aged 21 and over. For workers aged between 18 and 20, it rises to £5.30 and for those aged 16 between 17 it’s £3.87. The apprentice rate is £3.30.
- A ban on smoking in cars in England, following the ban’s introduction in Wales. Smoking in any private vehicle is now prohibited if there are child (under 18) passengers. It’s worth looking at your policies on smoking and company cars in light of this change.
- Sikh workers who wear turbans will be exempt from wearing safety helmets in all workplaces and not just on construction sites, as was the previous rule. There are a few situations in which this exemption won’t apply.

Working time for mobile workers

Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco
This is an important case for businesses in the construction, care, security and catering sectors. It also affects businesses that employ sales staff, engineers, or others who travel between customers.
The Court of Justice of the European Union has decided that mobile workers’ first and last journeys of the day will now count as working time. Workers (which covers employees) who don’t have a fixed office or base are ‘working’, for the purposes of the Working Time Directive, when they drive from home to their first appointment of the day and from their last appointment home. The Court decided that these are not ‘rest periods’, as the employer in this case had claimed.  It’s working time.
What does this mean for you?
First, you need to make sure that your workers aren’t ‘working’ too much and exceeding limits set by the Working Time Regulations. Remember all workers are entitled to a 20-minute rest break every 6 hours, and to 11 hours uninterrupted rest every 24 hours. You now need to include their travelling time as part of ‘working time’, meaning that the workers might be entitled to rest breaks – or, at least, different patterns of breaks – that they weren’t previously entitled to.
Second, there are implications for the maximum 48-hour working week. If the worker spends one hour travelling to their first site, and one hour returning home at the end of the day, this adds ten hours to their working week. If that pushes them over 48 hours (normally averaged over 17 weeks), you’re probably breaking the law unless they’ve signed a document opting out of their legal rights.
Third, there may be ramifications for pay. Contrary to what’s been reported in the national press, these hours won’t count for calculating whether someone is receiving the national minimum wage. So on the example above, just because an employee is working an extra 10 hours week, you don’t need to worry about their average hourly rate being pushed below the minimum wage. It won’t be.
But there may be other important points on pay. If they are paid by the hour, and your contracts don’t define what is meant by ‘working time’ (ie they don’t exclude this travel time), there is a risk that they will be able to bring a claim for unpaid salary at their normal hourly rate. Such claims can be backdated for up to two years in an employment tribunal, and up to six years in the small claims court.
You may need to think about introducing contractual changes, altering shift patterns and factoring in additional rest breaks. It’s worth talking to us to discuss the impact on your business, and how you’ll need to adapt.  

Scope of HR role in disciplinaries

Ramphal v Department for Transport
Mr Ramphal was suspected of misconduct relating to his expenses and use of hire cars. The manager who was appointed to carry out the investigation and disciplinary was inexperienced and turned to HR for help. So far, so good.
But the problems for the employer began when the HR officer’s input went further than just advising on the law, procedure and sanctions. In this case, HR appeared to have given advice on issues around Mr Ramphal’s credibility and culpability. A step too far?
Yes, held the Employment Appeal Tribunal (EAT). Drafts of the manager’s report had become more critical of Mr Ramphal following communications with HR who seemed to have influenced the manager’s views. The manager had initially concluded that Mr Ramphal was guilty of misconduct and should receive a final written warning. But that was later changed to gross misconduct and dismissal, seemingly at the behest of HR.
While it’s fine for a dismissing or investigating officer to ask for guidance, that guidance should be limited to law and procedure and to making sure that everything has been addressed and that there’s clarity. An employee in Mr Ramphal’s position is entitled to expect that the investigating officer will make their own decision, without being lobbied by others, held the EAT. They should also be given notice of changes to the case against them so that they can address them properly.

Enterprise Bill

A new Enterprise Bill has been published.
One point we think you need to know about is around the use of the term ‘apprenticeship’. It will be an offence for someone to describe a course or training it provides as an apprenticeship, unless it’s a statutory apprenticeship.
It’s all about protecting the term ‘apprenticeship’ and what it stands for, just as ‘degree’ is safeguarded. The Government wants to make sure that the apprenticeship brand can’t be misused through the delivery of lower-quality courses.

TUPE transfer where activities continue

Ferreira da Silva e Brito & Others v Estado Portugues
The TUPE Regulations apply to ‘relevant transfers’. One type of relevant transfer is a business transfer – the transfer of an economic entity that retains its identity. It’s not always easy to tell whether identity has been retained and, therefore, whether workers are protected by TUPE. And that’s what this case was all about.
Air Atlantis (AA) was wound up, and Mr Brito and more than 90 other employees were dismissed via collective redundancy. They claimed reinstatement and pay after the company’s major shareholder (TAP) took over AA’s planes, lease contracts, routes, offices and equipment. TAP had also taken on a number of former AA employees.
The Court of Justice of the European Union (CJEU) disagreed with an earlier court decision that there was no transfer.  Merely continuing a commercial activity didn’t by itself mean that a transfer had happened because the business also needed to retain its identity, the previous court had held. The CJEU held that AA’s operations were effectively continuing through TAP and identity had been retained. TUPE applied.
The transfer of tangible assets is a key factor in determining whether there has been a transfer of a business like AA. It was relevant here that TAP had taken over AA’s leases and used AA’s aircraft – these were essential to pursuing the activities that AA had previously carried on. The fact that TAP had taken over AA’s charter flight contracts indicated that it was dealing with AA’s customers. TAP had also taken on AA staff. And, the three-month gap between AA being wound up and TAP operating some of the charter flight business, meant that there was hardly any suspension of the activities.
Always a tricky area to deal with and, although we’ve got some broad rules, it’s one that will only ever be decided on the facts.

Sick employees and TUPE

BT Managed Services v Edwards
In another TUPE case, the issue was about who does and who doesn’t transfer. In particular, is a long-term sick employee who isn’t working “assigned immediately before the transfer” so that their employment transfers under TUPE?
Mr Edwards was considered to be permanently sick. There were no prospects of him returning to work but BT had kept his employment going so that he could benefit from a PHI scheme and, once that had come to an end, similar payments from BT.
There was a service provision change. The new service provider went on to claim that Mr Edwards had not transferred to become its employee. The tribunal agreed. It held that Mr Edwards was not assigned to the organised grouping because he did not contribute to its economic activity.
The Employment Appeal Tribunal upheld that decision. Mr Edwards wasn’t participating (and wasn’t expected to participate) in the activities carried out by the group. An employee who had no connection with the economic activity of the grouping and would never have one in the future could not be regarded as being assigned to that grouping. Mere administrative connection isn’t enough; there needs to be some participation in the group’s economic activity.
Treat this decision with some caution, whether you are the transferor or transferee. It doesn’t mean that no long-term sick employees will transfer under TUPE. Think about the prospect of the employee returning to work. Think, too, about their contribution to economic activity. Both are crucial factors in determining whether or not they’ll transfer.  

And finally…..

“Will this go to you, and only to you?”
It’s a question many of us now ask before tapping our PIN into a waiter or waitress’s card machine. And it’s not a daft question, especially since one pizza restaurant chain’s reported practice of taking a slice of tips paid by debit and credit cards was publicised.
The Government is now looking at how tips work in practice. It’s calling for evidence on how employers pass on tips, gratuities, service changes and cover to employees. The Government wants to know how it can ensure greater transparency and limit the amount an employer can keep.
If you’re interested in taking part, get your responses in by 10 November 2015.