Legal Updates

Our lawyers are recommended in The Legal 500 United Kingdom 2018 editorial (listed below)

WEST MIDLANDS
Dispute resolution - Commercial litigation - Birmingham
- Dean Parnell
- Kamal Majevadia

Dispute resolution - Debt recovery
- Kamal Majevadia
- Hayley-Jo Lockley
- Gemma Parker

Finance - Insolvency and corporate recovery
- Leanne Schneider-Rose

Human resources - Employment
- Dean Parnell
- Samantha Glynn

Insurance - Clinical negligence - claimant
- Mike Sutton
- David Lydon
- Adam Hodson
-Stephen Jesson

Insurance - Personal injury - claimant
- Mike Sutton
- David Lydon
- Adam Hodson

Insurance - Professional negligence
- Sundeep Bilkhu

Private client - Contentious trusts and probate
- Kamal Majevadia (leading individual)
- Tracy Creed

Private client - Family - Birmingham
- Karen Moores
- Mauro Vinti

Private client - Personal tax, trusts and probate
-Tracy Creed ~
- Nicholas Bennett
- Ravinder Sandhu

Public sector - Health
- Dean Parnell
- Fahmida Ismail
- Tony Harris (Deceased)

Real estate - Commercial property - Birmingham
- Georgina Walsh
- Div Singh
- Fahmida Ismail

Real estate - Property litigation
- Sundeep Bilkhu
- Kamal Majevadia

A professionally drafted will is something every adult should have. Not only does it provide certainty as to who should inherit your possessions after your death, but it will also make things a lot easier for your executor at a time that is usually very stressful.

A recent case illustrates this point. It concerned the death of a man whose failure to make a will stating his intentions threatened to deprive his ex-wife and two children of their rightful inheritance when he died suddenly.

During the course of his first marriage, the man and his wife had lived modestly and worked hard to bring up their children and to establish a thriving family company. When they separated and divorced, however, he was the company's sole owner. After he remarried, the company was sold and he received a sum of almost £5.2 million, which was paid into his second wife's bank account.

Following the divorce, the man had maintained a good relationship with his first wife and their children. He promised that he would pay for them to be housed comfortably and that he would cover the costs of the children's private education. However, he had done neither of those things before his premature death.

His first wife and children launched proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 with a view to obtaining reasonable provision from his estate. A declaration was also sought that the proceeds of the company's sale fell into his estate.

The man's widow contested the case, however, on the basis that the millions he paid into her account were a non-returnable gift. It was also submitted that, as an American citizen, the man was not domiciled in the UK and the Act therefore had no application to the case.

Following negotiations, a settlement of the dispute was agreed whereby his first wife would receive money and property worth a total of about £1 million. A further £950,000 would be divided between the two children. In approving the settlement, the High Court noted that it properly reflected litigation risks and avoided the trauma of what would otherwise have been a hotly contested trial.

Says Hayley-Jo Lockley,

The situation could have been easily avoided by the deceased taking advice and executing a Will stating his intentions regarding the distribution of his estate.  However, clients often contact us after the event when an estate has already become contentious. In those situations, negotiation is sometimes a sensible way to resolve a dispute, as litigation can be expensive and has a less certain outcome.

For help or advice on dispute matters, please speak to Hayley-Jo Lockley on 0808 166 8860 or email: h.lockley@sydneymitchell.co.uk; alternatively to ensure your Will is robust and fit for purpose, please speak to Debra Lourenco on 0808166 8860 to arrange a meeting with a member of our private client team.

The Advisory, Conciliation and Arbitration Service, commonly known as Acas, has issued new guidance for employers and managers on age discrimination, which is surprisingly one of the most common forms of unfair treatment in the workplace.

Over-50s now make up nearly a third of the UK workforce and no matter what the age, can experience discrimination based on their age.

The guidance explains how age discrimination can occur, how it can be prevented, how to deal with it if it does happen and how different treatment because of age can be allowed in certain situations, what we call objective justification.

The overview of age discrimination includes links to the following factsheets:

• Age discrimination: key points for the workplace. See http://www.acas.org.uk/media/pdf/o/1/Age_discrimination_key_points_for_the_workplace.pdf;

• Age discrimination: ten obligations for employers. See http://www.acas.org.uk/media/pdf/p/d/Age_discrimination_ten_obligations_for_employers.pdf; and

• Age discrimination: top ten myths. See http://www.acas.org.uk/media/pdf/p/l/Age_discrimination_top_ten_myths.pdf.

The guidance also gives details of the key areas where age discrimination may happen, points out the danger of stereotyping because of age and gives examples of the type of ageist language that could be perceived by the individual addressed as discriminatory.

It is very important to note that in discrimination, it is how the recipient perceives the words, which matters more than the intention of the person saying them.

There is also a short video on the nine protected characteristics under the Equality Act 2010.

To find out more on this and how it affects you, contact Emma Hewitt today on 0808 166 8860 or email e.hewitt@sydneymitchell.co.uk.

Leading West Midlands’ law firm Sydney Mitchell celebrated their 11th successful quiz at The Studio in Birmingham, raising over £3000 for its nominated charities. 90 people took part in the action packed Quiz with Stoo Pittaway, of SpeedQuizzing as Guest Quizmaster. It was a fast and furious event with a few twists. Teams were able to buy chance cards, giving teams the opportunity to leap to first place, add or deduct 10-30 points during the competition.

The winner of the much coveted Sydney Mitchell Charity Quiz Trophy for 2019 was Cornwall Street Barristers ‘Cornwall St Quizzers’ who were fast and accurate on the buzzers in the last round despite Dains ‘the Forlorn Hope’ fleetingly jumping to first place after the chance cards had been applied.  Close on their heels in 2^nd place was No. 5 Chambers ‘Hoof Hearted’ and in 3^rd place Eastcote Wealth ‘11 Donald Trump’s IQ’.  Voted best team name waswon by Brewin Dolphin with ‘Don’t EU love me baby?’. 

Karen Moores, Sydney Mitchell Partner, commented:

We look forward to the quiz each year and it is great to see so many regular supporters coming year after year.  Overall we raised over £3000 from entry fees, raffle and the Chance Cards sold.  We thank everyone for their support and to Cornwall Street Barristers for the hamper raffle prize. It was great fun and raising money for two fantastic causes.

Angela Henry, Trustee of the Buddy Bag Foundation, thanked all for supporting the fundraising for their charity.

 Thank you to Sydney Mitchell for choosing us as their chosen charity. It is so great to be able to help youngsters flea perilous situations at home and the foundation would not be able to function without the generous support from our sponsors and fundraisers.

Rebecca Jacob, Digital Marketing and Fundraising Officer for Age UK Solihull, addressed all quizzers:

We are proud to be able to help our older and vulnerable residents in Solihull and Age UK Solihull would not be able to do this without the support of you all at events such as the Sydney Mitchell Charity quiz.

Sydney Mitchell is a Midlands based award winning law firm, with offices in Birmingham City Centre, Sheldon and Shirley with additional facilities in Sutton Coldfield. Offering a range of specialist legal services for both businesses and individuals, Sydney Mitchell is listed in the Top Tier of the Legal 500, Lexcel accredited and has been shortlisted for Regional Law Firm of the Year in 2019; having previously won the award in 2018, 2015, 2014, 2013, 2011 and 2008 (5-15 partners) in the Birmingham Law Society Legal Awards.

The firm’s specialist teams include employment, commercial property, company and commercial services, litigation and insolvency. Private client teams include family law, residential property, dispute resolution and wills and probate, tax and trusts and personal injury.

Pictures from the event - Sydney Mitchell 11th Charity Quiz 2019
Winners, 2nd Place and 3rd Place plus voted Best Team Name:

1st Prize - Cornwall St Barristers – Karen Moores, Partner presented Champagne to Winners
(Andrew Tucker, Karen Moores, Georgia Griffiths and Simon Bradshaw) (Cornwall Street Quizzers)

2nd Prize -   No. 5 Chambers - Eamon Hurley-Flynn, Gemma Roberts, Peter Mottram and Karen Moores Sydney Mitchell LLP (Hoof Hearted)

3^rd Prize – Eastcote Wealth - Ben Brayshaw, Rob Kenyon, Alex Haynes, Karen Moores (Sydney Mitchell LLP) (Donald Trump’s IQ)

Brewin Dolphin – Paul Fielding, Paul Hepherd, Debbie Liburne and Paul Sargent -  Don’t EU love me baby?  Best Team name presented by Stoo Pittaway

About our charities
Age UK Solihull
Age UK – Solihull provides help and support to older people in the borough of Solihull. The Vision of Age UK Solihull is of a world where older people flourish and our Mission is to improve the lives of all older people in the borough. The Core, Central Library Building, Solihull, B91 3RG
0121 704 7840 info@ageuksolihull.org.uk  @ageuksolihull Charity number 1055887

Buddy Bag Foundation
The Buddy Bag Foundation was created in response to the rising number of children who enter emergency care after fleeing violent situations at home.  The Foundation helps restore a sense of safety and security into a child’s life during a traumatic time.  By providing these children with a few essential items, the charity can help make the transition into emergency care a little easier.  Over 48000 children require emergency accommodation each year in the UK.  Founder Karen Williams launched the Buddy Bag foundation in 2014 after being inspired by the Alannah and Madeline Foundation in Australia. hello@buddybagfoundation.co.uk
www.buddybagfoundation.co.uk @buddybagsuk Charity No. 1164916

Great news... Sydney Mitchell shortlisted for Regional Law Firm of the Year and excellent client service for its Dispute Resolution team .

click image for full list

See coverage in the Birmingham Post

Abolition of the "Swedish derogation”

The draft Agency Workers (Amendment) Regulations 2019, which are due to come into force on 6 April 2020, will remove the Swedish derogation from the Agency Workers Regulations 2010 to give agency workers a right to pay parity with direct employees after 12 weeks.

Written statement of terms and holiday pay

The Employment Rights (Employment Particulars and Paid Annual Leave (Amendment) Regulations 2018 (SI 2018/1378) due to come into force on 6 April 2020. These regulations bring in a right to be provided with a written statement of terms on the first day of employment, rather than within the first two months as required by the Employment Rights Act 1996, and add to the amount of prescribed information which a written statement must contain. They also amend the Working Time Regulations 1998 to increase the reference period for determining an average week's pay (for the purposes of calculating statutory holiday pay) from 12 weeks to 52 weeks. This will protect workers with no normal working hours whose pay fluctuates.

The Parental Bereavement (Leave and Pay) Act 2018

This is expected to come into effect in April 2020. Under the new legislation, which received Royal Assent on 13 September 2018, all employed parents will be entitled to a day-one right to two weeks' leave if they lose a child under the age of 18 or suffer a stillbirth from 24 weeks of pregnancy.

For help and advice on employment matters please contact Emma-Louise Hewitt on 0808 166 8827 or email e.hewitt@sydneymitchell.co.uk

January

On 7 January 2019 the Court of Appeal will hear the appeal in BMC Software Ltd v Shaikh, considering whether an employer's breach of the implied sex equality clause could constitute constructive dismissal.

Later in January, the Court of Appeal will hear the appeal in Agoreyo v London Borough of Lambeth, in which it will consider whether the suspension of a teacher accused of having used unreasonable force against children, purportedly to allow a fair investigation to take place, constituted a repudiatory breach of contract.

On 21 and 22 January 2019, the Supreme Court will hear the appeal in Tillman v Egon Zehnder Ltd, in which the Court of Appeal found a six-month non-compete restrictive covenant to be invalid. The restriction, which sought to prevent a former employee from being concerned or interested in any competing business, was deemed impermissibly wide because the phrase "interested in" included holding one share in a publicly quoted company. This will be the first case involving construction of an employment restrictive covenant to be decided by the Supreme Court (or the House of Lords) in over a century.

February

Chief Constable of Norfolk v Coffey, which will be heard by the Court of Appeal, is the first case to directly address the issue of direct discrimination based on perceived disability under the Equality Act 2010.

The Court of Appeal will hear the appeal in Bamieh v Foreign and Commonwealth Office, following the EAT's ruling that an employment tribunal had territorial jurisdiction to hear whistleblowing claims brought by an employee of the Foreign and Commonwealth Office against two colleagues regarding alleged events which took place while all three were on secondment to an EU Mission in Kosovo.

April

The Court of Appeal will hear the appeal in Kocur v Angard Staffing Solutions Ltd, in which it will consider the interpretation of regulation 5(1) of the Agency Workers Regulations 2010 which gives agency workers "the same basic working and employment conditions" as permanent employees after 12 weeks.

X v Y (a case about the retraction of legal advice privilege where there is a strong unambiguous case of injustice) is expected to be heard by the Court of Appeal on 2 October 2019. In this case the email suggested “cloaking” discrimination in a redundancy exercise.   

Finally, we can expect the Supreme Court to hear the appeal in Uber BV and others v Aslam, in which the Court of Appeal recently held, by majority, that Uber drivers are workers. The Court of Appeal gave Uber permission to appeal.

For help and advice on employment matters please contact Emma-Louise Hewitt on 0808 166 8827 or email e.hewitt@sydneymitchell.co.uk

In this article, we have attempted to highlight the key developments coming up in 2019 and beyond.   If you want to keep up to date with the latest developments, then sign up to our newsletter here.

This year is expected to be an eventful year in the world of employment law. Brexit will no doubt continue to dominate the press, a number of legislative measures will be coming into force, we will no doubt hear details of forthcoming employment law reforms, and the courts are set to hear a number of interesting appeals.

So, brace yourselves, the hot topics to look out for in 2019 are as follows:

Employment law reform: The Good Work Plan

On 17 December 2018, the government published the Good Work Plan (“the Plan”), which sets out what it described as "the biggest package of workplace reforms for over 20 years". The Plan builds on the government’s response to the Taylor Review recommendations in February 2018, outlines an intention to improve working conditions for agency workers, zero-hour workers and other atypical workers.  Many of the measures do not yet have specific timescales, but those measures for which legislation has already been published, are mostly due to come into force in April 2020.

These measures include a right for workers to request a more stable and predictable contract, an increase in the period required to break continuity of employment from one week to four weeks, a ban on deductions from staff tips and unsurprisingly a commitment to improve the clarity of the employment status tests, accepting the Taylor Review's recommendation that differences between the status tests in employment law and tax law should be reduced to a minimum to avoid any contradiction or confusion.

In the Agency Workers Regulations 2010, the government intends to repeal the "Swedish derogation" which excludes agency workers from the right to equal pay with comparable directly employed employees if they have an employment contract which guarantees pay between assignments.  This will also amend the Employment Rights Act 1996 to extend the right to a written statement of terms to workers and expand the information which must be provided in these statements.

The plan also proposes new measures which are designed to improve enforcement, by naming and shaming those employers who fail to pay tribunal awards on time as well as significantly increased financial penalties for employers who commit an "aggravated breach" of employment rights.

Increased financial penalties for employers: The draft Employment Rights (Miscellaneous Amendments) Regulations 2019

These are due to come into force on 6 April 2019 and are set to quadruple the maximum penalty for an aggravated breach of employment law from £5,000 to £20,000. Eventually, they will also extend to all workers the right to a written statement of terms and make it easier for employees to request to set up information and consultation arrangements, although these measures will take effect in April 2020.

CEO pay the big out: The Companies (Miscellaneous Reporting) Regulations 2018

This came into force on 1 January and bring in mandatory reporting of the ratio between CEO pay and average staff pay for companies with 250 or more employees, along with other corporate governance changes, all of which will be effective for accounting periods beginning on or after 1 January 2019 (and so the first pay ratio reports will be published in 2020). The measures include the obligation to prepare an annual statement of engagement with employees for companies with 250 or more employees (including details of any information and consultation arrangements, and how directors have had regard to employee interests).

Ethnicity pay gap reporting

On 11 October 2018, the government launched a consultation on mandatory ethnicity pay gap reporting. The consultation seeks employers' views on issues such as reporting methods and closes on 11 January 2019.

Employment status tests

Given the government's commitment in the Good Work Plan to improve the clarity of the employment status tests, including the potential harmonisation of the position under employment and tax law, we can expect to see further developments in this area in 2019.

Itemised payslips

The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No.2) Order 2018 (SI 2018/529) is due to come into force on 6 April 2019. This legislation introduces a right for all workers to be provided with an itemised pay statement and the ability to enforce this right at an employment tribunal.

The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) Order 2018 (SI 2018/147) is set to come into force on the same day and will require itemised payslips to contain the number of hours paid for where a worker is paid hourly.

National minimum wage

On 17 December 2018, the government launched a consultation seeking views on whether certain aspects of the national minimum wage (“NMW”) legislation should be amended to ensure that they do not inadvertently penalise employers. The consultation focuses on the complex rules on "salaried hours work" (one of four types of work in the National Minimum Wage Regulations 2015 (SI 2015/621) under which employers can average out pay over a calculation year for NMW purposes) and whether they effectively prevent exploitation of workers. The government is also seeking views on the impact of the NMW rules on salary sacrifice schemes, in particular whether employers are withdrawing schemes from low-paid workers in order to avoid non-compliance with the NMW. The consultation closes on 1 March 2019.

Brexit

The Prime Minister had announced that the vote in the House of Commons on the withdrawal agreement and political declaration would now take place in the week commencing 14 January 2019. It is therefore difficult to predict with any certainty the final terms on which the UK will leave the EU, and whether this will take place on 29 March 2019.

Potential developments to look out for:

Non-disclosure agreements

An inquiry was launched into the use of non-disclosure agreements (commonly known as NDAs) in harassment and discrimination cases.

New statutory code of practice on sexual harassment

The Equality and Human Rights Commission have been asked to develop a statutory code of practice on sexual harassment. It is suggested that observing this code will help employers demonstrate that they have taken reasonable steps to prevent sexual harassment from taking place in the work place.

Employment tribunal reforms

The Law Commission launched a consultation on employment tribunal reform. The consultation has sought views on issues such as whether the three-month time limit for most employment tribunal claims should be changed as well as some provisional such as increasing the employment tribunal's £25,000 limit for contract claims. The consultation closes on 11 January 2019.

Reintroduction of employment tribunal fees?

Whilst no timeframe has been suggested, the Ministry of Justice has noted that the Supreme Court judgment in R (on the application of Unison) v Lord Chancellor leaves open the possibility of a new scheme which would strike a balance between increasing employment tribunal funding and safeguarding the delivery of justice. In November 2018 it was suggested in evidence given to the House of Commons Justice Committee that a new fee regime was in development.

Tips and service charges

The government has announced plans for new legislation to prevent employers from keeping tips and service charges intended for workers. No specific timescale has been given, but the government has said that the changes will be introduced at "the earliest opportunity". These plans were reiterated in the government's Good Work Plan published in December 2018.

Grandparental leave

Despite government announcements of plans to extend shared parental leave and pay to working grandparents by 2018, further development is still awaited.

For help and advice on employment matters please contact Emma-Louise Hewitt on 0808 166 8827 or email e.hewitt@sydneymitchell.co.uk

A huge amount of property in the UK – especially commercial property and purpose-built buy-to-let properties such as student accommodation – is owned through the medium of overseas entities, usually in well-known tax havens. Such arrangements are also often accompanied with relatively high levels of service charges which have the effect of making the UK tax yield quite low.

Under such arrangements, the beneficial owners of the property are not public knowledge. There is also a widespread belief that such structures are used to ‘clean’ money derived from criminal activity and tax evasion.

In order to exercise some control over this, a Bill is passing through Parliament which will make it necessary for the beneficial owners of land registered at the Land Registry to be disclosed.

Failing to comply will be a criminal offence (punishable by fines and/or imprisonment) and there will be restrictions on the use or sale of land of which the beneficial ownership is unknown.

The legislation is expected to come into force in 2021.

For help and advice please contact Shilpa Unarkat, s.unarkat@sydneymitchell.co.uk  on 0808 166 8860.