Category Archives: Legal Briefs

When can you suspend employees?

In any contract of employment, there is an ‘implied term of trust and confidence’ between employer and employee.  But does this mean that an employer can’t suspend someone pending investigation in case they breach that term?

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The tribunals say not.  In the recent case of London Borough of Lambeth v Agorevo, a primary school teacher was suspended after being accused of using excessive force against a child with special education needs.  Her claim failed as the question was not whether it was ‘necessary’ to suspend her but whether there was ‘reasonable and proper cause’ to suspend.

For employment information and advice contact our Employment law team.

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End to the blame game in sight?

The Justice Secretary has today finally announced plans for a new law meaning divorcing couples will no longer have to blame each other for the breakdown of their marriage.blame game

The current law requires evidence of 1 of the following; adultery, behaviour, desertion, 2 years’ separation (if 1 spouse consents) or 5 years’ separation (otherwise).  As Accredited Members of Resolution we have supported the campaign for this change which will reduce conflict in the process and therefore the impact on any children.

New legislation will be introduced by Parliament in due course.

For more information or advice contact contract our specialist Family Solicitor Alison Winterbottom at our office.

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New payslip rights

Big changes to the Employment Rights Act 1996 in force from next Monday 6 April 2019, mean that ALL employees and workers (starting jobs after this date) will have a statutory right to a detailed written, printed or electronic wage slip including a breakdown of hours worked where pay varies by the time worked.56606352_2256108941328223_1516984931438297088_n

Employers currently only have to provide wage slips to employees and remarkably, don’t have to tell workers what they have deducted for tax, NI and pensions!

For employment information and advice contact our Employment law solicitors.

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Employers take note: Personal Injury compensation paid in Employment claim

Hailing a new approach, the Employment Appeal Tribunal (EAT) recently awarded personal injury compensation for failure to provide rest breaks under the Working Time Regulations 1998 (WTR).Judgement

Rights: Under the WTR 1998 all workers are entitled to an unpaid rest break of 20 minutes when working for more than six hours per day (Reg 12).  For workers carrying out monotonous work (i.e. a production line) further ‘adequate’ rest breaks must be provided to avoid a health and safety risk.  These rights are enforceable by bringing an employment Tribunal claim.

If an Employment Tribunal finds that the WTR have been breached, Reg 30 provides that it may award such compensation ‘as is just and equitable in all the circumstances.  However, in a previous case (Gomes v Higher Level Care) the EAT had confirmed that this would not include compensation for pure injury to feelings; which was only available in discrimination cases.

The facts:  In Grange v Abellio, the Claimant was employed as a ‘Relief Roadside Controller’ regulating and monitoring bus services.  He brought a claim alleging that his employer had refused him rest breaks but the first Tribunal dismissed his claim as there was no evidence of a deliberate refusal by Abellio.  Mr Grange appealed and the EAT held that the refusal did not have to be an active response to a positive request; here it was the arrangement of Mr Grange’s working day that had prevented him from taking his rest breaks. His claim succeeded.

Personal Injury: Mr Grange gave evidence that due to a bowel condition, the lack of rest breaks had caused him discomfort that was ‘more than a minor inconvenience’ and so, the Tribunal awarded compensation for personal injury.  His employer appealed, relying on Gomes.

The decision: The EAT rejected the appeal and confirmed that Tribunals are permitted to award damages for personal injury under Reg 30 of the WTR.  Further, that medical evidence and reference to injury guidelines was not necessary as the Tribunals should be able to deal with cases on a common-sense basis.

What next?: This case suggests that now, Claimants who can prove they suffered ‘more than a minor inconvenience as a result’ of a breach of WTR can be awarded personal injury  compensation.  This makes sense given that the objective of the EU Working Time Directive (as implemented by the WTR) was to protect the health and safety of workers. It could also mean that where a breach of the WTR is alleged, it could be easier to bring a low value personal injury claim in the Employment Tribunal than in the Civil Courts.

For more information and advice contact our employment law solicitors.

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Do not run out of time!

JudgementThe very recent case of Cowan v Foreman and others, highlights the importance of  bringing claims in a timely fashion.  In this case, a widow tried to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) against her husband’s estate.  The Act states that claims must be commenced within six months of the date probate has been granted.  The Court does have discretion to allow a claim to be brought out of time.  In this case the claim was brought 17 months after the date probate was granted.  The Judge refused the widow permission to bring the claim, commenting there was no justification for the delay.

The moral of the story is that if you think you may have a claim, act quickly and seek legal advice.

For further information and advice, please contact Johanna Nolan in our Dispute Resolution team.

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Tenant Fees Act 2019

On 1 June 2019, the Tenant Fees Act (“the Act”) will come into force.  The aim of the Act is to reduce costs Landlords may currently impose on tenants both at the outset and during the tenancy.  The Act applies to new tenancies from 1st June and to existing tenancies from 1 June 2020.  It affects tenants renting privately, student accommodation and licences. Letting Agents are also governed by the Act.  The Act does not apply to social housing and long leases.

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Of course, rent can still be claimed.  Rent payments cannot be increased at the beginning of the tenancy and then reduced later on in an effort to recoup costs indirectly.

A Landlord is permitted to claim certain payments by the Act, but the amount that can be claimed is restricted.  Whilst a deposit can still be claimed, the Act provides that the amount of the deposit cannot be more than five weeks rent if the annual rent of a property is less than £50,000.  If the annual rent is more than £50,000, the deposit must not exceed six weeks rent.  If a holding deposit is paid for a property, this must not be more than one weeks’ rent and once a tenancy agreement is entered into the holding deposit should be repaid.

Other charges can be made by a Landlord e.g. cost of replacing lost keys, charge for late payment of rent, ending the tenancy agreement early, changing the tenancy agreement or a claim for utility or Council Tax payments if not paid by the Tenant.  However, the Landlord can only recover the reasonable cost incurred by the Landlord.

Tenants will be entitled to recover charges wrongly paid.

A landlord in breach of Section 1 or 2 of the Act can face a fine of up to £5,000 for a first offence.  If a Landlord commits a further breach within five years of the first breach, a criminal offence is committed or alternatively the Landlord may face civil proceedings and be fined up to £30,000.

Landlords should note that if a payment prohibited by the Act has been taken and not re-paid to the Tenant, the Landlord will be prevented from serving a Section 21 notice.

For further information and guidance, contact our Dispute Resolution Team.

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New ACAS Guidance: Age Discrimination

Whilst we are all aware of sex, race and disability discrimination, ‘ageism’ is not something that receives as much air time. But, pursuant to the Equality Act 2010, age is also a protected characteristic and as such, treating someone unfairly because of their age is against the law (with some exceptions).Acas

The Act aims to protect people from unfair treatment, harassment or different treatment because of their age, the age they are thought to be, or the age of someone they are associated with. It doesn’t matter if the discrimination is intentional, what matters is how the recipient perceives what is said or done. In practice, this should mean that employers should:

  • Strive for an age diverse workforce.
  • Encourage interaction between age groups (socially and in work based tasks or projects).
  • Judge people on performance or quality of their work/application.
  • Not be asking for age information and years’ of experience when hiring.
  • Not stereotype or make assumptions about different age groups when deciding who to hire, train or promote.
  • Manage under performance regardless of age.
  • Not assume a person will retire or force them to do so, due to their age.
  • Not tolerate the use of derogatory comments related to age.

Whilst most employers are vaguely aware of the issue, until now there has been little by way of guidance on how to navigate the law. As such, it’s no surprise that age discrimination is actually one of the most common forms of unfair treatment at work, particularly with workforces being increasingly age diverse.

The new Guidance from ACAS (The Advisory, Conciliation and Arbitration Service) which can be found here seeks to educate employers, prevent unintentional discrimination and make a real start at stamping out ageism altogether. All in all a very important read!

For more information and advice contact our Employment law team.

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Christmas Parties Gone Wrong

As the Christmas party season gets into its full swing and the free booze is flowing, it’s easy to see how things can be said or done that will be regretted the next day. As such, whilst it ‘tis the season to be jolly, hosting a Christmas party can cause problems for employers long after the tree has come down.

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Vicarious liability holds an employer strictly liable for the wrongful conduct of its employees but will only arise where that conduct occurs ‘in the course of his/her employment’. It can arise from actions outside of usual working hours and will apply regardless of whether the acts are done with the employer’s knowledge or approval but not where the employee was on a ‘frolic of their own’. The Court’s consider ‘what was the nature of the employee’s job?’ and ‘is there a sufficient connection between the employee’s position and the conduct to make it just for the employer to be held liable?’.

Christmas parties are grey areas when it comes to vicarious liability as they are often held outside working hours and away from the workplace but paid for by the employer.  Adding alcohol into the mix means the usual boundaries are blurred and this can lead to inappropriate behaviour, unwanted advances, discrimination and misconduct. As is shown by the first example below, the Courts draw a distinction between events during the party itself and any subsequent gathering.

In Bellman v Northampton Recruitment Ltd (2016) the Managing Director punched an employee twice during a disagreement at 3am at a Christmas ‘after party’.  Mr Bellman’s head hit a marble floor causing brain damage and he sued his employer arguing that they were vicariously liable for the MD’s actions. The altercation was triggered by a work related dispute but the Judge drew a distinction between the main party and the after party at a different location; as nobody had been obliged to attend for late night drinks it was no longer a company event and the MD was no longer acting ‘in the course of his employment’ as organiser or host. As such the Judge found that the Company could not be vicariously liable.  Incidentally, it didn’t matter that the company contributed to the drinks bill and organised taxis to and from the after party.

The Courts can go the other way though. In Livesey v. Parker Merchanting Ltd (2004) the employer was found vicariously liable for the actions of an employee who sexually assaulted a colleague. The assault occurred in the car on the way home, immediately after the Christmas party and the Court found that the conduct was a continuation of sexual harassment at the work event and therefore ‘in the course of employment’.

What’s the answer? Employers need to be mindful of their potential liabilities and manage Christmas parties with care.  Having policies in place can make it clear what behaviour will not be tolerated and whilst nobody wants to be a Scrooge, staff should be reminded that the party will be an extension of the workplace so the same ground rules will apply.  It is also worth putting a Social Media policy in place regarding unflattering pictures, videos and comment being shared without consent.  Further, any inappropriate behaviour or actions which are reported or are seen at the party should be dealt with as a priority to mitigate the risk of claims.

If you are an employer or employee and need advice on any of the issues above, contact our Employment Solicitors or our Dispute Resolution team.

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National Work Life Week

It’s ‘National Work Life Week’ – an opportunity to focus on well-being at work and work-life balance.National work life week

Any employee with 26 weeks service for the same employer has a legal right to make a request to work flexibly – you don’t have to be a parent or carer.  If your request has been refused you may be able to do something about it.

Call our Employment team to book an appointment for further information and advice.

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Important tips for Landlord’s on granting or ending an Assured Shorthold Tenancy (‘AST’)

Since 1 October 2015, under the Deregulation Act 2015, a Landlord offering a new Assured Shorthold Tenancy agreement to a tenant must ensure that the tenant is provided with :-

  • A Gas Safety Certificate for the property to be occupied
  • An Energy Performance Certificate
  • The booklet entitled – How to rent: the checklist for renting in England

With effect from 1 October 2018, the above requirements will apply to all tenancies, even those in existence prior to 1 October 2015.

It has also been the case for some time that if a deposit is paid by the Tenant, the Landlord must ensure that:-

  • The deposit is being held in accordance with an authorised Tenancy Deposit Scheme and;
  • the Tenant has received the information about the Tenancy Deposit Scheme within 30 days of the Deposit being received.  Failure to provide such information means that the Tenant has a claim against the Landlord of up to three times the amount of the Deposit.

It is important that a Landlord complies with the above points as this could impede a Landlord’s right to obtain possession of their property at the end of the term of the tenancy.  It is common for Landlords to serve a Section 21 Notice upon the Tenant, if the Tenant does not vacate at the end of the term.  Non-compliance with the requirements set out above will mean a Landlord cannot serve a Section 21 notice, although steps may be taken to rectify the situation and enable service of a Notice.  Alternatively, a Landlord may be able to serve a Section 8 Notice.

A Landlord is further prevented from serving a Section 21 notice:-

  • Within the first four months of the tenancy and must issue any possession proceedings within six months of the date of the Section 21 Notice.
  • If a local housing authority has served notice upon the Landlord about the condition of the property.

With effect from 1 October 2015  for any tenancies granted after that date (and 1 October 2018 for any other tenancies) Landlords must serve upon the Tenants the prescribed form of the Section 21 notice, otherwise, the Section 21 notice will be deemed ineffective.

For further information on granting a new tenancy please contact our Commercial Property team or for advice on serving a Notice to end a tenancy, please contact a member of our Dispute Resolution team.  Both departments can work together to provide overall comprehensive advice to suit your individual or business needs.

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BREAKING NEWS – SUPREME COURT REFUSE RIGHT TO DIVORCE

The Supreme Court has today ruled that Tini Owens cannot divorce her husband, Hugh Owens of 40 years until 2020, when they will have been separated for 5 years.  This is because of the manner in which the Matrimonial Causes Act 1973 (which provides the basis of a divorce) is drafted and because Hugh Owens refuses to agree to a divorce.   The couple have been separated since 2015.

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This case and others have prompted a campaign for a change in the law to allow couples to divorce without a finding of fault on either party to the marriage.  Until the law is changed, it remains necessary for a party who wants to divorce their spouse to prove that the marriage has broken down irretrievably relying on one of the 5 facts out in the Matrimonial Causes Act 1973.

For expert help and guidance on any aspect of relationship breakdown, contact the Family team at North Ainley Solicitors.

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Should we end the blame game of divorce?

Under current English law, even if both parties agree that their marriage has broken down, unless and until they have been separated for 2 years, they cannot get divorced without one party being blamed.

The reasons for the breakdown of a marriage are usually complex and it is not uncommon for both parties to have quite different views regarding the cause of the difficulties that have arisen. When emotions are already running high, the law, which requires reliance upon either adultery or unreasonable behaviour (unless parties are willing to wait 2 years) is only likely to add fuel to the fire.

Forcing couples to blame each other when there is no real need to do so, can create unnecessary conflict which can in turn affect how the couple deal with the related arrangements that must be made in respect of any children and regarding financial matters.Resolution Standard

Resolution, an organisation of 6,500 family lawyers and other professionals who believe in a constructive and non-confrontational approach to family law matters, is currently campaigning for a change in the law that would allow couples to divorce without blame.

The need for reform has to a great extent been highlighted by the recent case of Owens v Owens in which a wife has been denied a divorce because the Court determined that her husband’s behaviour was insufficient to justify the granting of a divorce decree.  A decision of the Supreme Court is still awaited and will turn upon the interpretation of the relevant section of the Matrimonial Causes Act 1973. Whatever the outcome, the case highlights the need for change.

Resolution are proposing a new “no fault” process allowing one or both parties to give notice that the marriage has broken down irretrievably.  The divorce can then be progressed and if after a period of 6 months , either or both remain of the view that the marriage is over, the divorce can be finalised without any blame being assigned to either party.

Our family solicitors at North Ainley are accredited Resolution members and can advise and assist you with divorce proceedings and all other issues that can arise following the breakdown of a relationship.

 

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New Acas Religion & Belief Guidance

Religion will always be a sensitive subject and in a multicultural society like ours it can be tricky for employers to navigate without unintentionally discriminating.  With that in mind, Acas (the Advisory, Conciliation and Arbitration Service) have just issued new guidance on Religion and Belief discrimination.Acas

What is religion or belief discrimination?

The Equality Act 2010 makes it unlawful to discriminate against or treat someone unfairly because of religion or philosophical belief, or their lack thereof.  All protected beliefs are equal and so no one religion can override another. However, to be a protected philosophical belief, it must be more than an opinion, apply to a significant aspect of human life or behaviour, be worthy of respect and not conflict with other people’s the fundamental rights

The Guide

The Acas guidance suggests that discrimination is most likely to occur in recruitment, requests for time off and dress codes and suggests the following:

Recruitment

Job advertisements should be published widely, religion should not be mentioned in the posting but the employer should be clear in explaining the job’s duties and hours of work so there are no misunderstandings. Any potential issues should be flagged up early on in the recruitment process e.g. if the role involves client networking it would not be suitable for someone who refusesd to shake hands for religious reasons.

In rare circumstances employers can specify an ‘occupational requirement’ that a candidate must have (or not have) a particular religion or philosophical belief.

Leave Requests

Requests for time off for religious festivals or for religious reasons should be considered carefully and sympathetically and ideally, agreement on such requests should be set out within the employment contract. The guidance warns that refusing requests for leave for religious holidays and time to pray without good business reasons can lead to a claim for discrimination and also, that employers should acknowledge that employee performance may be affected during fasting.

Dress Codes

Where possible, employers’ dress codes should be flexible and reasonable and any restrictions must be based on solid business reasons that are proportionate, appropriate and necessary.

Is it useful?

In the absence of any government guidance, the Acas guide is long overdue and whilst it does go some way to inform and comfort employers it fails to address real life complexities of the workplace. For example, employers can be liable for their employees’ acts so it’s advisable to provide training to all staff on religion or belief discrimination and lay down firm rules on what behaviour is unacceptable. Employers should also note that if a discrimination cases got to an employment tribunal, the focus would be on how an individual ‘perceived’ words or actions and this is of course subjective.

If you are an employer or an employee and have concerns about discrimination in the workplace, contact North Ainley for expert legal advice.

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Dress Codes: “Don’t tell me what to wear!”

As a society we are becoming increasingly averse to being told what to do, not least in the workplace and especially when the British summertime hits and we want to ditch the suits and keep cool……

Can I be told what to wear? There are many valid reasons why an employer may impose a dress code (corporate image, identification, health & safety) but it must relate to the job, be reasonable in nature and ideally be set out clearly in the organisation’s policy. Employees must also be informed of the policy and given enough time to buy the required attire.

But is it fair? A dress code must not be discriminatory against any of the ‘characteristics’ protected by the Equality Act 2010 (age, disability, gender reassignment, religion or belief, sex, or sexual orientation). For example, if a dress code is in place, reasonable adjustments may need to be made for disabled people and employers must respect clothing worn for religious reasons. However, this must be balanced against other relevant factors i.e. loose clothing may be a hazard when operating machinery.

Men v. women:  The Government Equalities Offices has recently published new guidance on dress codes and sex discrimination. The Guidance highlights that whilst dress policies for men and women do not have to be the same, the standards imposed on each sex should be equivalent. For example a policy can require men to ‘wear a tie’ whilst ‘business dress’ is required for women and requiring any gender-specific items (high heels, manicured nails or lipsticks) is likely to be held unlawful.

Recent media hype surrounding dress codes has caused many employers to review and even scrap their policies. Last summer male employees revolted against a ‘no shorts’ policy by wearing skirts to work and the Speaker of the House of Commons announced that male MPs no longer needed to wear a tie to speak, thus ending centuries of tradition.

What if I don’t want to? If the code is reasonable, staff can be dismissed for failing to comply but employers should be cautious of imposing high standards and risk having their policy tested by the Employment Tribunal.

Our Team at North Ainley provide clear and practical advice on all Employment Law issues.

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Is your home owned by your partner?

In the 21st century it is very commonplace for individuals to cohabit with their partner. In the early stages of a relationship, a breakup seems remote.  If the property is owned in your partner’s sole name, it is prudent to consider at an early stage if you would be entitled to an interest in the home you share with your partner.  Many people invest their time and hard work into the “family home”, without establishing their rights.   This is a tricky area of law and it is important to obtain clear legal advice at the outset.

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The recent case of Dobson v Griffey [2018] EWHC 1117(Ch), emphasised  how difficult it can be to claim an interest in a property, if the property is in your partner’s sole name.  In this case, Ms Dobson and Mr Griffey were in a relationship and agreed to purchase a farm property in 2007, in Mr Griffey’s name, in which they would both live.  Ms Dobson alleged that before the property was purchased, an agreement was reached that she would have rights in the farm or that she had the right to live at the farm for her rest of her life. She also alleged agreement was reached that if Mr Griffey should die, she would inherit the property.

Ms Dobson carried out extensive manual work at the farm, including painting, tiling, clearing gutters and drains, creating gardens and re-sealing the roof. When the relationship broke down, she asserted that this manual work, together with the agreement she reached  with Mr Griffey before the farm was purchased meant she was entitled to a share in the proceeds of sale, when the farm was sold.  Mr Griffey did not agree and Court proceedings were issued by Ms Dobson, to establish her rights.

When couples are unmarried, the rules applied in the Family Court are not applicable and instead Courts have to decide cases such as this based on property law, which many consider are inadequate to deal with the way people live in the 21st century and reflect “contributions” made by an individual such as Ms Dobson.

The Judge hearing the case decided that no agreement was reached on the terms alleged by Ms Dobson and that she was not entitled to any money when the farm was sold. Accordingly, her claim failed.  She had not established any interest in the farm.

For help and expert guidance on these issues either at the outset or breakdown of a relationship contact the Dispute Resolution and Family team at North Ainley for further advice.

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Dementia Action Week 2018 (21st – 27th May 2018)

Dementia Action Week (DAW) is now in full swing with various events being held across the country.  The purpose of DAW is to raise awareness of dementia.  This week a staggering statistic has shown that there are currently 850,000 people with dementia in the UK.  By 2025 the number is set to rise to 1 million and by 2051; the number is set to rise to 2 million.

Given this statistic, dementia awareness is so important.  Everyone should educate themselves about dementia and there are plenty of helpful resources on the internet to help you in understanding more about dementia and how to care for someone with dementia.  You can also become a dementia friend by attending a session – search the internet for dementia friends sessions in your area.  We are in the process of arranging dementia friends training for all of our staff.dementia

With Barbara Windsor’s diagnosis of Alzheimer’s, the most common form of dementia, that has been in the press recently, and looking at the statistic above, it is so important to put things in place whilst you still can to ensure your loved ones can look after you, and your affairs, should you be diagnosed with dementia.  Everyone should have a Will in place and Lasting Powers of Attorney but, unfortunately, too many people in the UK do not.  Once you lose capacity you cannot make either so act now, or before it’s too late, to put them in place.

Having a Will means that you can ensure your assets pass to the people you wish to benefit on your death.  If you die without a Will (intestate), the law dictates who is to receive your estate.

Lasting Powers of Attorney allow your named Attorney(s) to look after and manage your affairs for you as and when you require assistance; whether that be whilst you still have capacity or if you should lose capacity.  Under a Lasting Power of Attorney, your Attorney(s) can ensure all of your bills are paid, your care home fees are paid and your affairs generally looked after.

Should you lose capacity and you do not have a Lasting Power of Attorney then your loved ones will not be able to manage your affairs and ensure your bills are paid.  They may have to in some circumstances pay your bills themselves for a period of time.  Your family, or an appropriate person, would have to apply to the Court of Protection to be appointed as your Deputy but, this process can be rather lengthy and expensive.

Act now to get your affairs in order and speak to a member of our Private Client Team.

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When is your home not your home?

What happens if you have lived with a partner for many years and your partner dies without making a Will?  What if the Will that your partner did make leaves little or nothing to you? In those circumstances, what rights do you have?

What, for example, happens to the property you shared with your partner?

What if your partner did not make a Will?

The Intestacy Rules will apply.  Co-habitees are not recognised under the Intestacy Rules.  A co-habitee would not benefit from a deceased partner’s estate.

What if the property is jointly owned?

If you owned the property with your partner on what is known as a joint tenant basis, the property would pass to you under established legal principles, whether or not your partner had a Will.

What if your partner owned the property?

If the property was in your partner’s sole name the Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of individuals (including those who have lived with a partner for more than two years) to make a claim against their partner’s estate, for what is known as reasonable financial provision.  The claim would be for such financial provision as it would be reasonable to receive for your maintenance.  Maintenance would include somewhere to live and may include a lump sum payment, dependent on your financial position.

“It won’t happen to me” In a recent case Thompson v Raggett (2018), a couple lived together for 42 years but never married.  Throughout the relationship, Ms Thompson was financially dependent upon Mr Hodge.  After suffering a stroke in 2006, she became physically dependent upon Mr Hodge and moved temporarily to a nursing home in 2015.  Mr Hodge purchased a cottage to be  adapted to Ms Thompson’s needs but he passed away before they could move into the cottage.  Mr Hodge made a will, leaving his £1.5m estate (including the cottage) to two tenants of a property he owned.  The will left nothing to Ms Thompson! She was effectively left homeless at the age of 79.

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Ms Thompson made a claim under the 1975 Act.  Often in these types of cases, Courts allow a cohabitee to live in a property during their lifetime and the property reverts on their death to the estate of the deceased partner.  Ms Thompson’s claim was successful and given the length of the relationship, she was awarded the cottage outright, c.£29,000 to cover costs of adapting the cottage to her needs and a lump sum payment of £160,000.

Don’t leave it to chance.  If any of these issues do or may affect you in the future, contact North Ainley for expert legal advice.

Johanna Nolan is a Solicitor in the Dispute Resolution team at North Ainley.  For advice on this issue or any dispute contact Johanna a member of our litigation team.

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Power of Attorney Fee Refund Scheme

On the 1st February 2018 the Ministry of Justice announced its Power of Attorney fee refund scheme.

The refunds are being offered to those who may have been charged more than was necessary to apply to register Lasting Powers of Attorney or an Enduring Power of Attorney between the 1st April 2013 and the 31st March 2017.  The reason for this is that during this period, the Office of the Public Guardian’s operating costs came down as more and more people were applying to register Powers of Attorney and the process of registering the same became more efficient.  However, the Office of the Public Guardian did not reduce the application fee in line with this.

To make a claim you can simply go online and use the quick and simple online service at www.gov.uk/power-of-attorney-refund.  This should take you around 10 minutes to complete.     You will need the donor’s UK bank account number and sort code to hand.  If the donor does not have a UK bank account then you will need to claim by telephone.  Similarly, if the donor has subsequently died or you are a court appointed Deputy, you will need to claim by telephone.

The Office of the Public Guardian have provided full guidance on their website and they have also set up a dedicated refunds service helpline.  If you do not have access to a computer or can’t use one easily, you can speak to the dedicated helpline.  To speak to the helpline you need to call the Office of the Public Guardian on 0300 456 0300 and select option 6.  The lines are open Monday, Tuesday, Thursday and Friday from 9am to 5pm and Wednesday from 10am to 5pm.  Please visit the following website for details of call charges – www.gov.uk/call-charges.

If you believe you may be entitled to a refund you should visit www.gov.uk/power-of-attorney-refund.  You can make a claim if you are the donor (i.e. the person who made the Power of Attorney) or an Attorney appointed within the Power of Attorney.  Any refund however will be paid to the donor.

The refund you receive depends on when you paid the fees.  There will also be 0.5% interest added on top.  If you cannot remember how much you paid you can still make a claim; the Office of the Public Guardian will work out the refund for you.  Only one form needs to be completed for each donor as the Office of the Public Guardian will be able to find all application fees paid by the donor during the qualifying period.

Below is a table of the possible fees you may receive back.

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If you paid a reduced fee (“remission”), you’ll get half the refund.

Once you have submitted your claim it takes up to twelve weeks for it to be processed.  If your claim is approved, the refund will be paid directly into the donor’s bank account.  If your claim is rejected you can appear this decision by contacting the refunds helpline.

For more information or advice, please contact a member of our Private Client team.

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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.

Also posted in Employment | Comments closed

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.

Accreditation_Resolution_Collaborative_Lawyer

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.

Also posted in Family | Comments closed
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