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Employment Law Update – Support for Parents with Premature or Sick Babies

Acas has recently published a very helpful advice and guidance note in relation to workplace support for parents with premature or sick babies.  This can be accessed at www.acas.org.uk.

Employers in such situations often find it difficult to know how best to deal with parents in a sensitive way.  The ACAS advice encourages them:Acas

  • To be compassionate and sensitive in all communications
  • To ask parents what they would like them to tell their colleagues about their situation
  • Make employees aware of their statutory entitlement to leave including, for example, shared parental leave; and
  • To be flexible in allowing time off when parents return to work for follow up appointments or treatment

We are able to provide advice to employers and parents facing what can be a difficult and anxious time.  If we can be of help, please contact Partner, Geoff Lamb at our office.

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Should the house wife go back to work following a separation?

In circumstances where a husband and wife have made a decision at the start of a relationship for one of them (usually the wife) to stay at home and look after the children whilst the other (usually the husband) works, what should happen on separation? Should the husband continue to support the wife financially by paying spousal maintenance?

Judgement

There are no easy answers to these questions.  The Courts have a high level of discretion and will consider a list of factors when determining whether maintenance is payable.  Any dependent children will be the Court’s first consideration.

However, in an age of male and female equality, the Court will expect the wife to maximise her earning capacity and take all necessary steps to become self-supporting, unless a good reason can be shown to defeat this expectation.  For example, it could be relevant that the wife is nearing retirement age and would struggle to find gainful employment.

In the recent case of ‘Wright and Wright’ the Judge said that there is a general expectation that the ex-wife and mother with children over the age of seven should seek appropriate work compatible with the children’s educational requirements and without undue hardship.

If the wife cannot earn enough to maintain the standard of living enjoyed during the marriage, then in certain circumstances the Court may still determine that maintenance is payable to “top up” the wife’s earnings.

The Court can order that maintenance be payable for life, however, this case demonstrates a move towards maintenance being reduced to a specific term and in certain circumstances maintenance no longer being paid, especially when at retirement age, as in this particular case.

It is important to note that any maintenance order can be varied at a later date if either the husband or wife’s circumstances change.

For further information please contact a member of our Family Department for more information and advice.

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More on Tribunal Employment Fees

Further to my previous piece regarding Tribunal Fees, the President of the Employment Tribunals has issued an Order staying all tribunal claims brought in reliance on the Supreme Court’s recent decision pending decisions of the Ministry of Justice and the Tribunal Service as to the implications of the decision.DSC_2846-2

The effect appears to be that all Applications for refunds of fees, claims that were rejected or dismissed for non-payment of fees, and new claims not brought earlier because of fees and where an extension of time is now sought, will now be stayed to await the Government’s response to the Supreme Court decision.

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Finalise your finances as well as your divorce

There is a common misconception that a divorce will finalise all financial matters arising from the marriage. Whilst a divorce does bring an end to a marriage itself it does not also bring an end to the financial obligations spouses have to each other.

Anyone seeking a divorce should also ask the Court to approve any agreement reached by lodging an agreed Consent Order.  Such an Order can deal with any income, capital and pension to be distributed.  The Order should provide for a clean break so that no claim can be brought by either party to the marriage in the future.

There are various methods to assist parties’ in reaching an agreement and your Solicitor will be able to advise you of the options available.

divorce1The Court will not approve an unfair agreement and in considering the Consent Order will take into account a list of factors including each parties’ housing needs, financial resources, earning capacity and standard of living. The welfare of any children will also be a key consideration.

The only way to ensure an agreement reached is binding is to have it embodied in a Consent Order. As such it is important that legal advice is obtained even if an agreement has been reached directly between you and your ex-spouse.

If an agreement cannot be reached then either party has the right to claim financial provision and to bring proceedings at Court.  These proceedings are complex and will result in a Court Order determining the finances.

Importantly, the right to bring proceedings at Court does not come to an end on divorce unless a Court Order has already been obtained.

As such it is vital that a Court Order providing for a clean break is obtained even if there are no assets of the marriage. If no order exists you could be left vulnerable in the future to a claim from your ex-spouse even in circumstances where your assets have been accrued post marriage and even if one or both of you have remarried.

If you wish to find out more please contact a member of our Family team for further advice.

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Employment Tribunal Fees

The big news in Employment Law is the Supreme Court’s declaration that Employment Tribunal and Employment Appeal Tribunal fees are unlawful both in Domestic and EU Law.  Tribunal fees have been payable by Claimants since 29 July 2013.  The effect of the decision is that all fees paid since that date must be reimbursed by the Government and fees are no longer payable for any claims being started now.  The Government has accepted the decision.Tribunal

So what happens next?

  1. The Employment Tribunals will need to update the online system for new claims and Tribunal Rules will need to be revised. Claimants wishing to lodge a claim now will find the online system has been suspended.  You will therefore have to make a claim on paper and send it by post to the relevant Tribunal Office.  No fee will be payable.  I understand the online system will be up and running again soon once reference to fees has been removed.
  1. It could be that you have been put off submitting a claim within time because you could not afford the fees. It might be possible to secure an extension of time but you must act quickly by lodging your claim without delay and be able to convince a Tribunal that it was the prospect of paying fees that put you off lodging your application within the prescribed period.
  1. The decision does not necessarily mean that fees will not be reintroduced. Commentators think the Government will issue a consultation paper and bring in a different fees regime which might even involve the Employer, as well as the Employee, paying a fee.  Watch this space.
  1. How long it will take for fees paid since 2013 to be refunded remains to be seen. No doubt some Civil Servants will have the unenviable task of trawling through each claim where fees were paid and no exemption applied.  What if the Respondent ended up reimbursing the Claimant the fees in a final award?  Will the payment be made direct to the Respondent in these cases?  Again, watch this space.

For advice on this and any other Employment Law issue, please contact our Employment Partner, Geoff Lamb.

Update – The online service has now resumed.  Anyone wishing to submit a Tribunal claim can do so online or by completing a hard copy of an ET1 form and posting it to appropriate central office.

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Should I set up a Trust?

Increasingly our clients consult us about gifting assets to their offspring and family during their lifetime, rather than on death by Will.

There are a number of advantages to giving this course of action consideration.  Many would prefer to see their beneficiaries receive the gift during their lifetime or perhaps the beneficiary has an urgent need for the financial support.  It could be that a child or grandchild requires money for a deposit for a house and our clients often feel a desire to offer a helping hand.  Lifetime gifting can also be important as far as inheritance tax and estate planning is concerned.

Frequently our clients are concerned about the improper use of the money gifted.  Perhaps they wish to ensure the funds are put towards a specific purpose.  Instability or suitability of a beneficiary’s relationship and the capability of a beneficiary to manage their money can also cause concern.

A solution is to transfer the funds into a Trust, rather than make an outright gift and instead of directly transferring ownership of the funds to the beneficiary, a formal document is put in place with a set of conditions and rules.  The client decides who should be the recipient of the funds and who should be responsible for ensuring the conditions are met and the rules adhered to.  They are known as the Trustees and careful consideration should be given to this choice.

family-trust-graphic

The amount of flexibility in decision making given to the Trustees is also determined by the way in which the paperwork is drafted.  It is possible to give the Trustees wide discretion over the decisions they make and they are guided by a Letter of Wishes.  This flexibility allows the Trustees to make decision about the funds in light of a beneficiary’s changing personal or financial circumstances and with continuing consideration to changes in legislation.

The popularity of this course of action is increasing and specific, tailored advice should always be taken.

If you would like to discuss this further with a member of our experienced Private Client team, please do not hesitate to contact us.

 

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Where there’s a Will there’s a way!

A Will is a written document created during your lifetime which determines how any property you own or money that you have at the date of your death will be shared out.  In the event that you do not have a Will the law stipulates who will receive your assets after your death and this may not be the same as your wishes.

There are very strict rules concerning the procedure around creating a Will to ensure that it is valid.  This is currently being reviewed and considered by the Law Commission who has said “The law around wills should be updated and brought into the “modern world””.  Consideration is being given to whether or not more modern forms of communication such as email or text message should be permitted forms of communicating your wishes in exceptional circumstances.

As the law currently stands a Will document must be in writing and signed by the person making the Will, in the presence of two witnesses, who must also sign the Will in the presence of the person making the Will and each other.  If these steps are not followed the Will is not considered valid and your wishes may not be carried out after your death.

draft-your-will

Many of our clients comment that had they attempted to make a Will at home, without the assistance of a solicitor, they would have encountered problems or made mistakes.  Our clients also benefit from advice relating to maximising the use of their tax allowances, care home fee planning, protecting their assets for and from relatives and future generations.  Unmarried couples do not have the same automatic tax reliefs and other rights as married couples, regardless of how long they have lived together, a common mistake made by our clients.

We invite you to contact our experienced Private client team to arrange an appointment to discuss making a Will.

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Employment Law Titbits

Our Employment Law Partner Geoff Lamb brings a couple of recent decisions which may be of interest.DSC_2846-2

The first concerns a Company making an employee redundant after a period of disability related sickness and whether that amounts to disability discrimination. No said the Employment Appeal Tribunal on the facts of the particular case.  It had become apparent to the employer during the employee’s sickness absence that they could manage without his post.  The Employment Tribunal had found that, although there was some link between the employee’s absence and the decision to make him redundant, this was not the same as finding he was dismissed because of his sickness absence.  The EAT upheld the Tribunal’s decision.

The second case of interest poses the question whether departing employees are under any duty to disclose to the employer their intention to set up a competing business once the period of their post-termination restrictions has expired. Two fairly senior employees (Technical Manager and Technical Sales Manager respectively) planned to set up a new Company in competition with their employer’s business.  When questioned by the employer after handing him their notice they lied.  The employer sought an Injunction and damages alleging they had breached their duty to answer questions truthfully and had misused confidential information to which they were privy.

A Deputy High Court Judge in the Chancery Division ruled “I am far from satisfied that these employees were under a duty to disclose their true intentions to [the employer]. The law will step in to prevent unfair competition or to hold employees to enforceable restrictive covenants or to protect confidential information.  Equally, employees must not induce others to breach their own contracts of employment, conspire to cause their employer injury or, in most cases, solicit their colleagues for their new enterprise.  Subject to these matters, employees are otherwise free to make their own way in the world.  I should therefore be reluctant to hold that an incident of the duty of fidelity is that, when asked a straight question, a departing employee is under a contractual obligation to explain his own confidential and nascent plans to set up in lawful competition”.

This may seem harsh upon the employer but I wonder what difference it would have made if they had been open about their intentions. The employer could not stop them once the post-termination restriction period had expired.  What the case is really about is whether the employees had misused confidential information to design and sell their own machines.  The claim for damages proceeds to trial.

The issue of truthfulness might have produced a different result if the employees had been more senior, for example, Directors of the Company, who owe greater fiduciary duties to the Company.

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What is a Lasting Power of Attorney – why might I need one?

Do you know someone who has dementia, Alzheimer’s or has had a stroke? They may have some other illness or problem that means they need help with their day to day life.  Have you ever seen a family struggle to handle someone else’s affairs and come up against confidentiality and data protection, and be able to go no further? Other issues may involve difficulties in paying bills or having to pay expenses out of their own money while they wait to be able to access the accounts of their loved ones. Care decisions may have been made by social workers and doctors instead of by their partner or family.  If you do know someone who has experienced any of these issues you will know that the challenges they face in these circumstances are upsetting and make an already difficult time harder.

LPA

It is possible to plan ahead so that should the worst happen to you then your family will not have to worry about how they manage to pay any bills or who will be making decisions about your care. The way to do this is by executing a Lasting Power of Attorney (LPA) whilst you are well enough to do so.  Under an LPA you are choosing who you would like to manage your affairs and make decisions on your behalf if you are no longer able to do decide for yourself.

There are two types of LPAs; property and financial affairs and health and welfare. You can choose to do just one of these but to be fully prepared we would recommend that both are put in place.

Your choice of attorney(s) (you can name up to four) is an entirely personal decision but it is crucial that you trust them as they will be making important and sometimes life changing decisions for you.  It is especially important if you are unmarried and want your partner to have decision making powers in relation to your health care as they do not have any legal standing as a family member and would not be considered your next of kin.  In any event, no person is permitted to deal with assets held in your sole name, should you lose mental capacity, without an order of the Court or an LPA regardless of whether or not they are your next of kin.

You can include guidance or restrictions for your attorneys in the LPA so you can have an element of control over the decisions they make later in your life.

If you are not well enough and have lost mental capacity then an LPA cannot be signed.  This means someone will need to apply to the Court of Protection on your behalf and asked to be appointed as your Deputy (another type of attorney) in order to be able to look after and manage your finances.  It is a costly and lengthy process. There is no guarantee that the person you would choose is the one that will be appointed, especially if your family cannot agree and the court has to decide.  Please note they rarely make Court of Protection appointments for health and welfare, so if you do not have an LPA, those decisions may be made by professionals instead of those who know you best.

The process is fairly straightforward but there are some technicalities involved which makes it important that professional advice is taken in order that the formalities are complied with.

Making an LPA now does not mean it has to be used straightaway and you will not lose control of your assets or your decision making powers by signing it. Instead you are ensuring that you are prepared should your circumstances change so your loved ones will be able to take over straight away.

Making an LPA may seem unnecessary if you are fit and healthy, but things can change unexpectedly and in an instant so the opportunity to prepare an LPA will be lost.  Preparing now is the key for you having the peace of mind that in the future you will be well looked after by people of your choosing.

To discuss Lasting Powers of Attorney further, please contact our Private Client Department.

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North Ainley Solicitors retain their Lexcel Accreditation

North Ainley Solicitors has once again successfully secured the Law Society Legal Practice Quality Mark, Lexcel.

Lexcel is developed specifically for the Legal Profession.  It is an optional, recognised accreditation scheme for Law Firms and in house Legal Departments which gives the public the assurance that a Practice meets high Client Care and Business Management standards.

In order to gain and retain the Lexcel accreditation a Firm must undergo rigorous initial and then annual assessments.  This includes conducting background checks and an onsite visit from an independent experienced trained Lexcel Assessor.

Lexcel

John Ainley the senior partner of the firm said “while we are proud to have retained the Lexcel Accreditation, it is our Clients and Staff who are the main beneficiaries.  They can be assured that the way we manage the Practice has their interests at heart and runs efficiently.  There is a lot of choice in the legal services market but being Lexcel Accredited demonstrates our commitment to Client Care and Best Practice”.

North Ainley joins more than 1700 other Legal Practices in England and Wales with the Lexcel Accreditation.

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