Every family is different whether they are married, live together, have children, are childless or same sex. Why then should there be Collaborative Law Team Sydney Mitchell LLP 0121 700 1400only one option i.e. the court, to help families when relationships come to an end or when families want to agree what should happen if a relationship comes to an end.

Collaborative law has been around for over 10 years. It puts families in control of how children and assets are going to be dealt with if the family are no longer going to live together. It excludes court involvement, except to approve what the parties have agreed. It is entirely private.  It is non-confrontational, but it still involves lawyers and other professionals in helping families make arrangements. It is completely transparent. Discussions take place in meetings with all parties including lawyers so.

Frankly, it works. It is harder to lose sight of trying to reach an amicable solution when you sit in a room together. You are in control of the agenda so that you can prioritise matters that are important to the family.

The collaborative process can also be used at the start of a relationship in order to negotiate and agree a pre-nuptial agreement or living together agreement in anticipation of marriage, cohabitation or a civil partnership.

We have a collaborative lawyer at each of our offices.

If you wish to discuss this process in any more detail or to see if it is suitable for you please look at  the video on the attached link https://www.sydneymitchell.co.uk/services-individuals/family-law/separation-and-divorce/collaborative-law or contact Judi Wood, Amanda Holland or Teresa Mannion on 0121 700 1400.

The rules governing the taxation of termination payments are being tightened from 6 April 2018 by means of legislation to amend Chapter 3, Part 6 of the Income Tax (Earnings and Pensions) Act 2003.

Hitherto, where the employee's contract of employment contained an express payment in lieu of notice (PILON) clause, such payments were taxed at the appropriate rate. Where a PILON was not contractual, or the business making it did not routinely make such payments to departing staff, it could be regarded as compensation for breach of contract and paid free of tax up to a threshold of £30,000.

In order to ensure that the £30,000 exemption cannot be abused, the distinction between contractual and non-contractual PILONs has now been removed. The change applies to payments or benefits received on or after 6 April 2018, whether contractual or non-contractual, in circumstances where the employment also ended on or after 6 April 2018.

Employers are now required to calculate the amount of basic pay excluding bonuses, referred to as post-employment notice pay (PENP), the employee would have received had they worked their full notice period. This amount is taxable as earnings and subject to Class 1 National Insurance Contributions (NICs).

The first £30,000 of a termination payment that is not PENP remains exempt from Income Tax, and any payment made to any employee that relates solely to the termination of their employment will continue to have an unlimited employee NICs exemption. The proposal to subject all termination payments above the £30,000 threshold to employer NICs, which was originally due to take effect at the same time, has been delayed until April 2019.  

The legislation ensures that PENP calculations are not to be applied to statutory redundancy payments. These are always taxable as specific employment income and subject to the £30,000 exemption where appropriate.

Initial guidance on the new rules can be found in HM Revenue and Customs Employer Bulletin 70 at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/684355/EmployerBulletin.pdf. More detailed guidance will be published in the Employment Income Manual in due course.

A further change is that Foreign Service Relief in respect of termination payments is to be removed. This will not apply to seafarers, however.

In addition, the legislation clarifies that the exemption from tax for payments for injury and disability is not intended to apply to payments for injury to feelings, except where the injury amounts to a psychiatric injury or other recognised medical condition. 

Employers are advised to include a PENP clause in employees' contracts of employment as the tax advantage of excluding such a clause no longer exists. If you would like assistance in reviewing your contracts of employment to ensure they are fully compliant with current legislation, please contact Samantha Glynn (s.glynn@sydneymitchell.co.uk) on 0121 698 2200.

References to 'seniority' or 'length of service' can all too easily be read as impermissible references to an employee's age, a point which was made by one case in which a sporting body narrowly defeated its former group marketing director's claim that his dismissal was infected by ageism (Kelly v PGA European Tour).

Mr Kelly commenced employment with PGA European Tour, the organisation which operates the three leading men's professional golf tours in Europe, in 1989 and was 60 years old at the time of his dismissal. This occurred following the body's appointment of a new chief executive officer (CEO) who had been critical of his performance. The CEO had, without success, urged retirement upon him as a dignified means of managing his departure and had eschewed putting him through a formal disciplinary process because of his senior position and his many years of service to the organisation.

Advertisements placed in search of a successor to Mr Kelly had stated that PGA European Tour was looking for 'energised' and 'vibrant' candidates and, in a presentation, the CEO had said that the body's aim was to establish 'a diverse group of millennials and established experienced employees'. In those circumstances, after Mr Kelly launched proceedings, an Employment Tribunal (ET) found that he had established an arguable case of age discrimination and the burden of proving otherwise was shifted onto his former employer.

In ultimately rejecting Mr Kelly's claim, however, the ET accepted that the CEO had wished to handle his departure respectfully and that the CEO's comments did not reveal a preoccupation with age. The real reason for his dismissal was the CEO's view that he had not bought into his ideas on the way forward for the organisation and was unable to embrace the changes he wished to introduce.

In rejecting Mr Kelly's challenge to that ruling, the Employment Appeal Tribunal found that the ET had not erred in law in concluding that the reason for his dismissal was not age and had given adequate reasons for its decision.

Says Samantha Glynn, Employment Lawyer at Sydney Mitchell,

We can advise you on any aspect of discrimination legislation, how it affects your business and how to ensure that your employment practices, policies and procedures are fully compliant.

For help or advice on this or other employment law matter, please contact Samantha Glynn on s.glynn@sydneymitchell.co.uk

The Employment Rights (Increase of Limits) Order 2018, which details the annual inflation-linked changes in limits on the compensation amounts which can be awarded by an Employment Tribunal (ET), has been laid before Parliament. The new rates will apply where the appropriate date falls on or after 6 April 2018.

The main changes are:

  • The maximum amount of a week's pay for the purpose of calculating a redundancy payment, or for various awards including the basic or additional award of compensation for unfair dismissal, increases from £489 to £508. The maximum award of an employee's statutory redundancy pay therefore increases from £14,670 to £15,240;
  • The minimum amount of compensation where an individual is found to have been unlawfully excluded or expelled from a trade union increases from £9,118 to £9,474; and
  • The statutory maximum compensatory award for unfair dismissal increases from £80,541 to £83,682.

There is no statutory cap on the amount an ET can award in discrimination cases.

See http://www.legislation.gov.uk/uksi/2018/194/pdfs/uksi_20180194_en.pdf for full details of the changes.

For Legal help and advice on employment matters, please contact Samantha Glynn s.glynn@sydneymitchell.co.uk

Children thrive best when they have ready contact with both their parents. However, as one case involving the eight-year-old son of Polish parents showed, difficulties frequently arise where one parent wishes to relocate overseas.

The end of the parents’ relationship was acrimonious and their son had suffered a degree of emotional harm as a result. However, they had settled into shared care arrangements in England before the mother formed a new relationship with a successful businessman who lived in Poland. She applied to a family judge for permission to move back to her homeland with her son.

Her proposal was met by the father’s fierce resistance and, in refusing permission, the judge was highly critical of the mother. Amongst other things, he found that, in presenting her son as an ill child, she had deliberately exaggerated or invented his psychological problems in an attempt to add weight to her case.

In upholding the mother’s appeal against that decision, the High Court recognised that it was a difficult and finely balanced case. However, the judge had left various relevant factors out of consideration, in particular the profound difficulties that the mother would encounter in maintaining her new relationship if she had to remain in England and the likely impact of that on her son.

There was a lack of balance in the judge’s findings in respect of the mother’s alleged medicalisation of her son; there had been no assessment of her ability to make a living in England and insufficient weight had been given to her history of promoting contact between her son and his father. In the circumstances, the mother’s application to relocate was remitted to a different judge for reconsideration.

Contact Amanda Holland or a member of our family team on 0121 698 2200

 

Signing a contract before you are sure you are willing to complete it can be a huge mistake: judges do not flinch from enforcing valid contracts, as a recent case shows.

It involved a man who reneged on a deal to buy a family home for £5 million. He had not viewed the property before contracts were exchanged and had dealt with the vendors through an intermediary whom he had never previously met. However, he had signed the contract in person and a judge rejected claims that the intermediary had acted without his authority or that the contract was rendered void when the intermediary agreed to accept a secret commission. The result was that the man was ordered to pay a seven-figure sum in compensation to the disappointed vendors.

After the buyer pulled out and the deal was aborted, the vendors eventually sold their home for the lower price of £4.2 million. They launched proceedings for the difference between the first putative buyer's agreed purchase price and the sum they eventually received. They were awarded £800,000 to reflect the difference between the two figures and further substantial sums to cover their additional expenses, including the cost of bridging finance occasioned by the breach of contract. Although the precise amount of compensation has yet to be calculated, this is estimated to be in the region of £1.5 million.

Says Adam Oleskow, Conveyancing Partner at Sydney Mitchell:

Although the circumstances in this case were very unusual, the principle that you should only sign a contract if you are willing to be bound by it is clear. If there are any potential issues, legal advice should be taken to ensure your interests are fully protected.

Speak to Adam or a member of his team if you are considering signing a contract with a view to purchasing a property.

Adam Oleskow a.oleskow@sydneymitchell.co.uk

The validity of wills is sometimes subject to legal challenge, but the default position is that everyone is allowed to leave their worldly goods to whoever they wish.

A judge made that point in giving effect to the wishes of a strong-minded pensioner who bequeathed everything she had to one son, cutting out the other two.

Five years before her death, aged 88, the woman executed a will by which she made her middle son her sole heir. She had previously put the family home, worth about £350,000, into their joint names, with the result that he automatically inherited the entire property on her death. In a letter written five years before she died, she explained her wish to reward her middle son for the assistance he had given her during her final years. She wrote that her youngest son was in no need of her bounty, being economically independent, and that she rarely saw her eldest son, who she could not rely on to help her.

In dismissing the eldest son’s challenge to her will and the lifetime gift of her home to his brother, the judge found that there was no evidence that his brother had brought undue influence to bear upon their mother.

The pensioner knew her own mind when she reached the rational decision to benefit her middle son alone. He was very close to her and had sacrificed his hairdressing business in order to move in with her and care for her when she experienced ill health in later life.

For help or advice on this or other related Wills Trust or Probate matters contact Ravi Sandhu on 0121 698 2200 or email r.sandhu@sydneymitchell.co.uk

Winning compensation is one thing, but enforcing its payment is another. That point could hardly have been more powerfully made than by a case in which a domestic servant who was awarded almost £270,000 by an Employment Tribunal (ET) ended up without a penny.

In what was believed to be the first successful ‘caste discrimination’ case brought before an ET, the Indian woman successfully complained that the couple for whom she worked had paid her far below the National Minimum Wage. The ET also found that she had been unfairly dismissed and discriminated against on grounds of her religion and race. She was awarded total compensation of £266,536.

A firm of solicitors commendably agreed to act free of charge in pursuing the couple for payment of the award. However, they ultimately only succeeded in recovering £35,702, roughly 13 per cent of the amount due. The Legal Aid Agency (LAA) had funded the woman’s case and elected to exercise its statutory charge over the sum recovered. The end result was that the woman received nothing.

In ruling on the woman’s judicial review challenge to the LAA’s decision, the High Court acknowledged that her position was extremely unfortunate. The findings of the ET were wholly consistent with her claim that she was a victim of trafficking and had been held in servitude by the couple. In dismissing her case, however, the Court rejected arguments that the application of the statutory charge breached her human rights or European rules designed to combat human trafficking.

For help and advice on employment law matters, contact Samantha Glynn on 0121 698 2200 s.glynn@sydneymitchell.co.uk

On the 1st February 2018 the Government launched a scheme to enable people in England and Wales to claim back excess fees they paid to the Office of the Public Guardian for applications to register lasting powers of attorney and enduring powers of attorney. The refund scheme is for fee payments made to the Office of the Public Guardian between 1 April 2013 and 31 March 2017, and includes repeat applications and remissions, whether the power of attorney was registered or not.

You can read the full Ministry of Justice press release here

https://www.gov.uk/government/news/power-of-attorney-fee-refund-scheme-launched

All those eligible for a partial refund on their power of attorney fees can apply from 1st February 2018.

Further details on the scheme are available on the Governments own website here

https://www.gov.uk/power-of-attorney-refund

All those eligible for a partial refund on their power of attorney fees can apply from today.

The Governments website includes further details on the scheme including:

• Who can claim a refund
• How much the refund will be (typically £45 to £54)
• How to claim

The refund scheme is by way of online application and will take approximately 10 minutes. Claims can be submitted by the person who made the power of attorney or an appointed attorney.

You can also claim by phone if you don’t have a computer or can’t use one easily (Telephone: 0300 456 0300 - choose option 6)

https://claim-power-of-attorney-refund.service.gov.uk/when-were-fees-paid

Again, more information is available here

https://www.gov.uk/power-of-attorney-refund

Alternatively you can contact the Refunds Helpline:
Email: poarefunds@justice.gsi.gov.uk
Telephone: 0300 456 0300 (choose option 6)

Judges do not flinch from enforcing contracts for the sale of land and that is a good reason why you should never sign on the dotted line before taking legal advice. In a cautionary tale that underlined the point, a man who reneged on a deal to buy a family home for £5 million was ordered to pay seven-figure compensation to the disappointed vendors.

The buyer had not viewed the property before contracts were exchanged and had dealt with the vendors through an intermediary whom he had never previously met. However, he had signed the contract in person and a judge rejected claims that the intermediary had acted without his authority or that the contract was rendered void when the latter agreed to accept a secret commission.

After the buyer pulled out and the deal was aborted, the vendors eventually sold their home for the lower price of £4.2 million. After lawyers launched proceedings on their behalf, they were awarded £800,000 to reflect the difference between the two figures and further substantial sums to cover their additional expenses, including the costs of bridging finance occasioned by the breach of contract. Although the precise amount of compensation had yet to be calculated, the vendors’ lawyers estimated their total award at £1.5 million.

For advice on residential property matters, contact Adam Oleskow, Partner 0121 746 3300 a.oleskow@sydneymitchell.co.uk or a member of staff in our conveyancing department.

 

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