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Annual Leave: Know your rights

Right about now, we are all feeling like we need a good dose of sunshine if not just a break from the hum drum of working life. So, what are your rights?

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Your basic rights – The Working Time Regulations 1998 ensure all employees and workers can take paid leave.  If you are full time, this is a minimum of 28 days every year to include bank holidays although your employer might be more generous.

When can you take it? – In theory, whenever you want as long as you give your employer notice.  There are no official rules so you should consult your contract of employment and company policies but you can expect to give your employer twice the length of notice as the time you propose to take off.  It’s also worth requesting your holiday in writing so you’ll have a record if you have to dispute it later.  Also note, you cannot be required to use annual leave when at home sick.

Can they say no? – Your employer can turn down your request if they have a good reason e.g they’d be understaffed at a busy time of year.  But, they have to give you the same amount of notice as the amount of time you were requesting to take off.

Unused holiday – Most employers will cover unused holidays in their policies with either a ‘use it or lose it’ clause or a limit on the number of days you can carry over to the next year.  If your employer isn’t clear on this they risk large claims for payments in lieu of holidays.

How much should I be paid?  You should be paid the same rate when on holiday as you’re normally paid.  If your pay or working hours vary you should get the average based on the last 12 weeks.

Unlawful deduction from wages  If you get commission, shift allowance etc on top of your basic pay, this should be included in your holiday pay i.e. you shouldn’t get paid less because you took time off.

This issue has been under the spotlight recently as it transpired that many individuals may have claims for unlawful deduction from wages as they earn a basic pay plus variable payments (shift allowance, overtime, commission) but only received basic pay when on holiday.  Workers should be alert to this and also to any sudden changes in holiday policy which could suggest their employer is trying to avoid such claims.

Resolving a problem – If you think your employer has breached its obligations the first step should be an informal chat to raise your concerns.  If this doesn’t work, check if your employer has a formal grievance procedure you can follow or raise a grievance by writing a letter setting out your concerns.  If this fails, you may be able to bring claim in the Employment Tribunal.  The time limit for a holiday pay claim is 3 months from either the termination of your contract or from the last unlawful deduction from wages.

For advice on all aspects of litigation and employment law please contact Laura Campbell in our Employment & Dispute Resolution team.

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Separating Together

The decision to separate can be difficult and daunting, with the most common concerns and fears relating to the risk of conflict, the impact on the children, your future financial security and of course costly legal battles.

Unfortunately family breakdown is a fact of life and the legal process can sometimes lead to more pain and heartache.  Whilst there is no way of avoiding the sadness and upset that the end of a relationship brings, a new approach, called Collaborative Law, could enable you and your partner to work out the arrangements to be made together, with your lawyers and without going to court.

The traditional approach involves both parties taking separate advice from their own family lawyer and working through their lawyers they attempt to reach an agreement.  If agreement cannot be reached then court proceedings are likely to follow with a decision being imposed by the judge.

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The Collaborative process is fundamentally different in that you and your partner commit at the outset not to go to court but rather to sit down together and work with your respective collaborative lawyers, to find a solution to all the issues.  You are in control, you set the agenda and talk about what is important to you.

Although meeting face to face and talking things through with your ex-partner can seem a huge challenge when you are dealing with all the emotions that accompany the end of a relationship, focussing on solutions and the best outcome for the whole family can actually ease the pain of family breakdown.  Discussing how you feel and what you want for the future can enable you and your ex to have a better understanding of each other’s views and to remain on more amicable terms in the future.  This is of course particularly important if you have children.

Everyone knows that a bitter separation or divorce can leave lasting scars, not only for the couple involved but also the children and extended family.  Whilst dealing with arrangements through the Collaborative process, does not prevent separation being difficult, for many couples it can provide a better way of separating, together.

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Warning to all Landlords – time is running out!

Landlords will not be able to rent out both domestic and non-domestic properties unless they meet the new Energy Performance Certificate (EPC) Rules (2018) which come into force on 1 April 2018.  Properties across England and Wales are currently expected not to pass the new rules and could face huge fines.

To make sure you don’t fall foul, consider the new rules and what you need to do to make your property compliant in time.

What are the upcoming EPC changes?

Landlords are required to have a EPC Certificate and they last for a period of ten years.  Back in 2015 legislation was passed that means, from 1 April 2018, properties will have to meet a minimum energy efficiency standard (MEES).  The minimum efficiency standard is set at an E rating for all types of domestic and non-domestic property.

So which properties do the new EPC rules apply to?

The new rules apply to both domestic and none-domestic properties in the private rental sector meaning that whether a landlord is letting out a commercial property or a house to a tenant, it could be unlawful to do so should the building not meet these new minimum EPC requirements.

Without an EPC rated E or above it will not be possible to issue a new tenancy, or renew an existing tenancy, from 1st April 2018.  There are fines of up to £5,000 for landlords that are found in breach of the legislation.  The regulations will be enforced by Trading Standards Officers. Penalties will be based on the rateable value of the property.

Do the EPC changes affect current tenancies or just new lets?

The 2018 rules only apply to new tenancies, but in 2020, the same rules will apply to all tenancies.

In April 2020, the new MEES rules will apply to all existing lets.  At this point, you will need an EPC rating of an E or above to let your property at all.  Even if your tenancy is already underway and you have no plans to renew, after April 2020, you will need to have an EPC rating of E or above or you could face fines.

What should I do if my rental property has an EPC that is lower than an E rating?

If your last EPC rating was below an E, the first thing to do is consider when the EPC was last carried our and what improvements, if any, you have made to the property that may have improved the energy efficiency rating.  EPC calculations are changing all the time and it is possible that you will receive a different rating to the one you got several years ago.  Your EPC report will have a list of recommended measures for improving your property’s energy efficiency performance.  You will need to carry out enough of these measures to improve your score to above an E rating.  If the property’s new EPC rating is still below an E, then you will need to make efficiency improvements to boost your rating before you let it out or renew your contract.

Speak to your EPC assessor if you are unsure about how to proceed with improvements.  After the energy efficiency changes have been made to the property, you will then need to get another EPC to show the new energy rating.

We recommend you review your property portfolio now to consider what you may need to budget for in the future.

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Holidays during term time: cheaper, but is it really worth it?

As we all struggle with the January blues, it’s no surprise this is prime holiday booking season.

Regardless of your views on whether it’s appropriate to take children out of school during term time, most of us are a bit vague on what we can and can’t get away with…..

When are absences allowed?

As a starting point, under English law any parent who fails to ensure their child goes to school ‘regularly’ is guilty of a criminal offence under Section 444 of the Education Act 1996.

The basic position is that you can only allow your child to miss school if:

  • They’re too ill to go in, or
  • You have advance permission from the school.

Advance permission

Previously, under the Education (Pupil Registration) (England) Regulations 2006 schools had the discretion to grant up to 10 days term time holidays each year for ‘special circumstances’. But, since The Education (Pupil Registration) (England) (Amendment) Regulations 2013 came into force head teachers can now only give permission in ‘exceptional circumstances’ (e.g. visiting seriously ill family, attending a close relative’s  funeral or if immediate family in the Armed Forces is returning from operations).

Basically, even with the most persuasive request you’re unlikely to get permission for a term-time holiday.

What happens if I take them away anyway?

You are breaking the law.

Head teachers have to report all absences to the council responsible for education in their area (LEA). Therefore, if an absence is unauthorised (i.e. advance permission was refused) you could face a £60 fine (per child per absence) or worse.

What if I don’t pay the fine?

If you don’t pay within 21 days the fine increases to £120 and if you don’t pay the fine after 28 days you can be prosecuted for your child’s absence from school under the Education Act 1996.

If found guilty you could end up with a criminal record and face a fine of up to £2,500, court costs or even a jail sentence of up to three months.

Repeat offenders may wish to note that the LEA are technically under no obligation to issue a fine (penalty notice) first and could take you straight to the Magistrate’s Courts.

A cautionary tale: Platt v Isle of Wight LEAJudgement

The Isle of Wight dad was prosecuted by the Council after he took his daughter to Florida for 7 days during term time without permission resulting in a fine which he refused to pay.

At first instance the Magistrates Court found there was no case to answer and two High Court Judges upheld that decision due to the child’s otherwise high attendance (95% prior to the holiday).  In April 2017 the Council successfully appealed to the Supreme Court who unanimously found that Mr Platt must face prosecution as “regularly” in the Act meant “in accordance with the attendance rules” and that a child’s prior record of attendance was irrelevant. The matter was sent back to the Isle of Wight where the Magistrate handed Mr Platt a 12 month conditional discharge and ordered him to pay £2,000 in costs.

This decision is binding on Courts and local authorities meaning anybody appealing a fine is now unlikely to be successful.

For further information and advice, please contact Laura Campbell at our office.

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City litigator joins North Ainley

Long established Oldham firm North Ainley is pleased to announce the appointment of experienced lawyer Laura Campbell to bolster its litigation practice.

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Laura has spent her career to date in Manchester city centre, having trained at a large national practice before moving to top global law firm DWF LLP.  With experience in all areas of litigation, Laura joins the Dispute Resolution team which has provided the people of Oldham and its surroundings with advice on personal injury, clinical negligence, employment, consumer rights, property and commercial disputes for over 100 years.

Laura explains “I’ve acted for all kinds of organisations and individuals from business owners and national companies to prisoners, nurses and athletes which has exposed me to all manner of claims and taken me to the Court of Appeal…you name it I’ve dealt with it”. She added “I’m sure my family would agree that I am a born litigator and I am passionate about what I do which means I will go above and beyond to secure the best result for my clients”.

When asked why she’s moved from the ‘bright lights’ of the city Laura was clear “I was keen to move away from the corporate culture but I didn’t want to compromise on quality and had been looking for an opportunity at a thriving local law firm with a long standing reputation.  North Ainley more than fits the bill and I am keen to use my experience for the benefit of a more local clientele”.  She added “From the moment I met with the partners I knew it would be a good fit for me…it’s a friendly, professional practice and client satisfaction is at the heart of everything they do”.

Managing Partner John Ainley, welcomed Laura, saying: “This is a fantastic appointment for the firm.  Laura brings a wealth of experience and a commercial attitude which will enhance our litigation practice” and her arrival coincides with an exciting time of development for both the practice and the new ‘Independent Quarter’ of Oldham, of which we are a proud part”. Geoff Lamb who heads up the Dispute Resolution team added “Laura is a confident and tenacious lawyer but she is also engaging and approachable which fits perfectly with our aim of combining a local, friendly, personal service, with city professionalism”.

Laura lives locally with her husband and two young daughters where they play an active part in the village and school communities. Laura concluded: “I look forward to being part of North Ainley’s continued success and to helping ensure they remain at the forefront of the local legal community”.

For more information or advice, please contact Laura Campbell at our office.

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Love is in the air

With Valentine`s Day around the corner and the shops filled with love hearts, chocolates and balloons, it can be easier than ever to be swept away in the first blush of a new relationship.

But if you have recently separated or divorced, whilst a new romance is a happy and exciting time for you, it can be an unsettling and worrying time for your ex-partner and your children.

However head over heels in love you are feeling, it is worth taking some time to think about the impact your new relationship may have on others close to you.

Whether your ex–partner still has feelings for you or not, a new relationship can be a source of conflict, which if not handled properly can lead to problems with the arrangements for the children. Inevitably your former partner will be concerned about how your new relationship will impact on the children.

Your children too may need some time to adapt and may initially feel jealous or insecure now they have to share you with someone new. Don`t forget that many children continue to harbour secret hopes that their parents will get back together and a new partner can bring this hope to an end.  It is not uncommon for children to feel worried about how the other parent is feeling and concerned that if they like the new partner this may cause further upset.  These conflicting feelings can be very confusing and unsettling and can lead to the children being reluctant to leave the other parent or even saying that they don`t like the new partner .

So what can you do?

Be patient:  Take things slowly. Children need time to adjust to the separation of their parents before being introduced to a new partner.

Communicate: It will definitely help if you keep your ex-partner informed, particularly of any plans to introduce the children to your new partner. If possible talk through any concerns and be prepared to offer assurances about your new partner`s involvement with the children. Be willing to listen.

Be sensitive: Only introduce the children to someone you are in a long-term relationship with. Do not rush the children but let them take time to get to know your new partner gradually. Remember the children will not feel the same as you do about your new partner and will still need some time alone with you, particularly if they do not live with you.

Reassure: Both the children and your ex-partner will benefit from assurances that the new partner is not a substitute parent ,replacing mum or dad and that you and your former partner will continue to have joint responsibility for the children`s parenting .

If you are experiencing difficulties regarding the arrangements for the children, particularly if a new partner is involved, seeking early advice from a specialist family lawyer can prevent a small problem becoming a major headache.

For more information or advice contact Alison Winterbottom in our Family Department.

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Cohabitation Agreements – Do you need one?

If you are living as an unmarried couple the simple answer to this question is probably yes, given that under English law cohabiting couples have little or no legal protection if their relationships break down.

Cohabiting couples are the fastest growing family type in the UK with almost 7 million people living in this type of relationship and the numbers are projected to rise further as the decline in marriage continues.

It is perhaps astonishing in the circumstances that the law does not recognise the rights of unmarried couples who live together.

In a previous article, we talked about the myth of the “common law husband or wife” and highlighted the difficulties that unmarried couples can experience asserting their rights to the family home.  The difficulties do not stop there.  Under the current law, a couple could live together for 20, 30 or even 50 years (periods longer than most marriages) and following separation, simply walk away without any on-going financial responsibility to each other.   Perhaps even more surprisingly, the case remains the same even when the couple have children together.

Imagine the not uncommon scenario of an unmarried couple with young children.  The mother has given up work, putting her career on hold to look after them.  Should their relationship break down, although the father will have a responsibility to pay child support he will have no financial obligations to his former partner.  This is despite the fact that they made choices together as a couple which may have prejudiced the woman financially and damaged her career prospects.

You may have seen reference in the press or social media during the last week in November to “Cohabitation Awareness Week”. This campaign is about raising awareness amongst cohabiting couples and is calling for the introduction of laws to provide cohabiting couples with legal rights.

Sadly however, pending any change in the law many unmarried couples will remain vulnerable if their relationship breaks down and may find that it is too late for a family lawyer to help them.

So what can you do pending a change in the law?

You and your partner could agree to enter into a Cohabitation Agreement, to protect you both if  your relationship breaks down. The Agreement can record your intentions and deal with both the financial arrangements whilst you are living together and set out what will happen to finances and property if the worst happens and you split up.

You could also consider taking out life insurance and you should definitely make a Will.

Many unmarried couples continue in the mistaken belief that they have rights as a common law husband or wife, when no legal rights exist. If you are in a cohabiting relationship, it is important to seek legal advice from a specialist family lawyer so that you understand how you would be affected financially if your relationship were to break down and how a Cohabitation Agreement could help to protect you.

For more information or advice, please contact Alison Winterbottom in our Family Department.

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Christmas Hampers – The Alzheimer’s Society

At Christmas time each year the staff at North Ainley donate various items to fill luxury hampers, with each hamper being raffled off to raise money for their chosen charity.  This year the staff wished to support the Alzheimer’s Society, a very worthy cause.

Every penny donated to Alzheimer’s Society is making sure they can be there for people affected by dementia.  They are the only UK charity investing in research into dementia care, cause, cure and prevention, committed to spending £150 million on cutting-edge research over the next decade. Every project they fund directly addresses the needs and concerns of people affected by dementia.

What is dementia?Alzheirmer's Society

The word ‘dementia’ describes a set of symptoms that may include memory loss and difficulties with thinking, problem-solving or language. These changes are often small to start with, but for someone with dementia they have become severe enough to affect daily life. A person with dementia may also experience changes in their mood or behaviour.

Dementia is caused when the brain is damaged by diseases, such as Alzheimer’s disease or a series of strokes. Alzheimer’s disease is the most common cause of dementia, but not the only one. The specific symptoms that someone with dementia experiences will depend on the parts of the brain that are damaged and the disease that is causing the dementia.

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North Ainley – Christmas Closing Times

Our office will close at 14.00 on Friday 22 December 2017 and re-open at 09.00 on Tuesday 2 January 2018.

Limited staff will be available at the office between 10.00 – 16.00 on 27, 28 and 29 December 2017.

The Partners and Staff would like to wish everyone a Merry Christmas and a Happy New Year.

 

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UBER – Latest Case

Uber’s Application to take its Appeal straight to the Supreme Court, thereby bypassing the Court of Appeal, has been refused.

This means that the Appeal against the decision that Uber drivers are “workers” (rather than self-employed contractors) and entitled to the rights associated with that status (e.g. holiday pay) will now be heard by the Court of Appeal some time in 2018.

In February the Supreme Court is going to hear an Appeal in the case of Pimlico Plumbers.  That will be an opportunity to review the whole question of worker status.

Watch this space.

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Holiday Pay

The European Court of Justice has recently made an important ruling in an English case referred to it concerning holiday pay.  It is a decision which will have important and far reaching implications for Uber drivers and others in a similar situation.

The question for the Court was whether a worker who does not take paid annual holiday because the employer refuses to pay holiday pay carries over his entitlement to paid holiday or loses it at the end of each holiday year.

In a nutshell, it carries over in those circumstances.  The employer took the view that the worker was self-employed and therefore not entitled to holiday pay.  The worker was actually working on a self-employed commission only contract from the 1 June 1999 until he retired on the 6 October 2012.  When he took annual leave it was unpaid.  On retiring he sought to recover payment for his annual leave – both taken and untaken – for the entire period of his engagement.  The employer argued that under the UK Working Time Regulations if paid holiday is not taken in a leave year it is lost.

The European Court decided that, if the worker is prevented from taking their paid holiday because the employer won’t allow paid holiday, then the worker is being prevented from exercising his EU right to statutory holiday and cannot be stopped from bringing a claim simply because a new holiday year has started.  The Working Time Regulations that says a worker loses his right to carry over is incompatible with EU law and, what is more, the back pay claim could go all the way back to 1996 when the European Working Time Directive came into force.

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Therefore employers, whose self-employed contractors are now deemed to be “workers”, could face substantial claims dating back 20 years.  The only consolation for employers is that this only applies to 4 weeks’ holiday a year (rather than 5.6 weeks allowed in the UK) as that is the EU minimum holiday entitlement.  Nevertheless, if a worker has been engaged that long, the bill for an employer could be 20 years x 4 weeks = 80 weeks’ pay per worker.

For further information and advice, please contact Geoff Lamb at our office.

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Save the Children Christmas Jumper day

It is that time of year again and everyone at North Ainley are preparing to sport their most festive knits to raise money for the Save the Children Christmas Jumper Day.

On Friday 15 December 2017 millions of people up and down the country will be joining in and donating £2 to wear their Christmas sweaters for the day.  Everyone who donates £2 to take part in this year’s silliness will do some serious good around the world.  It can help to bring the bare essentials like food, healthcare, education and the much needed protection to millions of children around the world.save the children

A £2 donation could help pay for a blanket and hat to keep a child warm.  Every jumper really can help save lives.

For more information, please visit the Save the Children Christmas Jumper Day website.

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Update on Recovery of Employment Tribunal Fees

The Refund Scheme is now open to everyone who has paid fees in connection with a Tribunal Claim or an Appeal since July 2013.

You can apply if one of the following circumstances applies to you:-

(1)      you paid the fees and made the claim;

(2)      you paid the fees for someone else to make the claim; or

(3)      you paid the fees a Tribunal ordered you to pay to someone who brought a claim against you.

To apply online go to https://employmenttribunals.service.gov.uk

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Data Protection – Don’t get caught out!

As from the 25 May 2018 the existing law on Data Protection will be repealed and replaced by a new Act to work alongside the General Data Protection Regulations (GDPR).  New sweeping powers to punish breaches in respect of Data Protection you hold on employees, customers, suppliers and clients will be introduced.  Failure to report a breach, as well as the breach itself, could result in a heavy fine.

Many of the principles and main concepts in the GDPR are much the same as in existing legislation that there are new elements which businesses (and key people within them) will need to take on board.

The Information Commissioners Office has issued a document listing 12 steps we can all be taking now to prepare for the changes.  This can be accessed on the ICO’s website https://ico.org.uk

In the New Year we will be offering a service to business clients to assist them in ensuring their existing Policies and procedures accord with the new Regulations.  This is intended for those clients who do not have the time and resources to carry out an audit of existing arrangements.  Educating key people in the organisation is going to be essential.

For more information please contact Geoff Lamb at our office.

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New Stamp Duty Charges for First Time Buyers

Prior to the Budget first-time buyers paid Stamp Duty on purchases above £125,000.  In today’s Budget the Chancellor announced that Stamp Duty has been abolished immediately for first-time buyers buying a home of up to £300,000.

The change means that for properties costing up to £500,000, no Stamp Duty will be paid on the first £300,000.  Stamp duty will then be charged at a rate of 5% on the amount from £300,00 to £500,000.

The change will apply in England and Wales, and in Northern Ireland up until the end of March 2018.

The table below illustrates the changes.

SDLT Table

What is Stamp Duty?

Stamp Duty is a lump-sum tax that anyone buying a property or land costing more than a set amount has to pay. The amount of tax you will have to pay varies based on the property price.

Do I qualify as a first-time buyer? 

A first-time buyer is defined as someone who has never owned freehold or leasehold property before and who is purchasing their only or main residence.  This includes ownership of a property anywhere in the world.

So if you have sold up and rented for a while, you do not qualify.

You also won’t qualify for the relief if you’re buying to let – even if it’s your first purchase.  The property you’re buying needs to be used as your main residence.

In respect of a joint purchase, all purchasers would need to be first-time buyers to qualify for the relief.

Please contact our Property Department for further information.

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Leave for Grieving Parents

A long overdue Bill is to be presented to Parliament entitling parents who lose a child under the age of 18 to at least 2 weeks parental bereavement leave to be taken before the end of the period of 56 days beginning with the date of the child’s death.  Any employee, regardless of length of service, will be entitled to that leave.

Also, those parents who have 26 weeks’ continuous service will receive statutory parental bereavement pay.  Employers will be able to recover the cost from the Government.

The new entitlements will apply in the case of stillbirths after 24 weeks of pregnancy.

In the case of more than one child dying the entitlements will be in respect of each child.

Hopefully this Bill will receive a smooth passage through Parliament.  All employers are no doubt understanding and flexible when an employee suffers the loss of a child but until now there has been no legal obligation to allow parents time off to grieve.

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Divorce and Business Assets

How a couple’s assets are to be divided is often the most difficult issue to resolve when a couple is going through a divorce.

Businesses (which include limited companies, partnerships and sole traders) form part of the assets to be shared on divorce and will be a central consideration in the negotiations and any financial proceedings.  It is therefore very important that if you are going through divorce or contemplating separation, where there is a business involved, that you seek expert legal advice from a family lawyer.  This will enable timely consideration of your particular circumstances and help to ensure that the best outcome is achieved.

Where there is a business, alongside the more usual considerations given in respect of the family home, investments and pensions, there must be careful exploration of the nature of the business, its value (if any), and the income it generates.

There are a number of points to think about.

Early consideration should be given to the need for a valuation of the business.  If the business produces an income stream only and there is effectively nothing of value to sell, then a valuation will not be necessary.  In these circumstances, depending upon the level of income generated, it may however be relevant to consider sharing the income stream by way of a Maintenance Order or conversely obtaining a Clean Break Order to prevent future financial claims being made.

A valuation is however likely to be required if one spouse has a significant shareholding or owns the business outright and where there is a sizeable turnover and profit.

Valuing a business is not straightforward and it would be usual to instruct an independent expert accountant jointly with your spouse.

Once a valuation is obtained, it is not as straightforward as adding the value in with the other assets to be divided between the parties.  This approach is too simplistic and does not recognise the risk laden nature of some businesses.  The capital value of business assets is not necessarily the same as property or money in the bank and this should be factored into the negotiations and the terms of the financial settlement.  This is particularly relevant if the business is to be retained by the owning spouse with the non-owning spouse receiving a greater share of the other property or investments owned outside the business by way of compensation.

This is a complex area of law and if you are dealing with relationship breakdown, seeking early legal advice from a specialist family lawyer is important and more likely to enable you to resolve the arrangements constructively and without unnecessary legal costs being incurred.

For further advice, please contact Alison Winterbottom at our office.

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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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  • Legal advice provided was excellent and helped us understand factors we had not foreseen.  Many thanks.
    Mr & Mrs Fieldsend - Chadderton
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