One powerful reason why you should always seek legal advice before making your will is to ensure you meet your responsibilities to those who depend on you financially. In one case on point, the High Court effectively rewrote the will of a wealthy landowner who cut his long-term partner out of his £1.5 million estate.

The couple had been living together as man and wife for over 40 years. When he was in hospital shortly before his death, aged 94, he had told her not to worry as she would be well looked after. However, he left her nothing in his final will – he had made about ten others previously – and instead bequeathed his entire estate to two of his tenants who had been kind to him during his final years.

In a letter of wishes attached to the will, he expressed a determination that neither his partner nor her four children should inherit any part of his fortune. He stated, incorrectly, that she had her own resources and was financially comfortable. In fact, she had been left with modest savings of about £2,500 and was otherwise entirely dependent on benefits. In those circumstances, her lawyers launched proceedings under the Inheritance (Provision for Family and Dependants) Act 1975, seeking reasonable provision from his estate.

In upholding her claim, the Court noted the duration of the relationship and the care that the woman had given to her partner as his health declined. She had worked without pay on his farm and in his business, and assisted in caring for his mother before she died. In those circumstances, the terms of his will failed to match up to the moral and legal responsibilities that he owed her as a dependant.

The Court ordered that a cottage worth £225,000 should be transferred to the woman from the estate. She was also awarded almost £190,000 in cash to cover the costs of refurbishing the cottage and other expenses. The Court noted that the tenants, as the man's chosen beneficiaries, would still inherit the lion's share of his estate.

If you have been deprived of benefiting from the estate of someone on whom you were dependent, contact Kamal Majevadia regarding the possibility of making a claim. k.majevadia@sydneymitchell.co.uk 0808 166 8860.

The Parental Bereavement (Leave and Pay) Bill began life as a Private Members' Bill in July 2017. The Bill is being supported by the Government and is now wending its way through Parliament.

The aim of the Bill is to give parents who are employed and have suffered the death of a child under the age of 18 the right to two weeks' Bereavement Leave in order to give them time to grieve. Employees with 26 weeks' continuous service will also be entitled to Bereavement Pay. Under the law as it stands, employers are not required to give paid leave to grieving parents. Whilst employees have the right to take a reasonable amount of time off work to take action which is necessary for dependants – for example, if they are ill or injured – or make the necessary arrangements 'in consequence of the death of a dependant', there is no right to sickness absence due to grief.

The Government has now published a consultation document seeking views on options for regulations to fulfil certain provisions contained in the Bill, specifically on:

  • the definition of 'bereaved parent';
  • how and when two weeks of Bereavement Leave and Pay can be taken; and
  • the notice and evidence required to take Bereavement Leave and Pay.

The consultation, which can be found at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/695894/Bereavement_Leave_Consultation.pdf closes on 8 June 2018.

The Parental Bereavement (Leave and Pay) Bill can be found at https://publications.parliament.uk/pa/bills/cbill/2017-2019/0164/18164.pdf

Contact Samantha Glynn on employment law matters on 0121 698 2200 or email Sam on s.glynn@sydneymitchell.co.uk

There can really be no excuse for a modern employer not to have in place comprehensive anti-discrimination policies that are fully understood by all workers. In one case that illustrates the consequences of failing to comply with the law in this respect, a transgender sales assistant who was subjected to playground-style bullying whilst working for a major retailer has been awarded almost £50,000 in compensation (De Souza E Souza v Primark Stores Limited).

The worker had been dressing as a woman on a permanent basis for almost 15 years before the retailer employed her. Although her male birth name appeared on her passport and other documentation, she made it clear during her interview that she wished to be addressed by her preferred, female name. Both names were, however, entered on the retailer's computer system and, despite her protests, one of her supervisors persistently called her by her birth name.

The woman had been in the job for about three months when her transgender status became widely known amongst her colleagues. A series of incidents followed, in one of which a co-worker commented on her deep voice and sprayed male perfume in her direction, causing her to cough. In another, when she was fixing her makeup in the women's toilets, a colleague commented that there were 'no ladies in there'. She had also overhead colleagues referring to her as 'evil' or 'a joke'. She became so upset by her treatment that she ultimately resigned.

After lawyers launched proceedings on her behalf, an Employment Tribunal (ET) found that she had been constructively dismissed after enduring harassment and direct discrimination due to her gender identity. Despite her complaints, including to the police, her employer had done nothing to assist her, merely telling her to calm down and that she was drawing attention to herself.

She had been bullied out of a job she loved and the injury to her feelings was severe. The discrimination had made her feel insecure about her gender identity with the result that she had been prescribed anti-depressants and was unable to work for a considerable period following her dismissal.

She was awarded total damages of £47,433, made up of £20,000 for lost earnings, £25,000 for injury to feelings and interest. The ET recommended that the retailer put in place a training regime and a written policy instructing its managers how to deal appropriately with new or existing staff who are transgender or who wish to undergo gender reassignment.

Employers should make sure they have up-to-date anti-discrimination policies in place and that these are effectively enforced. Contact Samantha Glynn on 0121 698 2200 if you would like advice on this topic.

Under the Pensions Act 2008, every employer in the UK has a duty to enrol certain staff into a pension scheme and contribute towards it.

Employers are reminded that the minimum required contribution levels to auto-enrolment pension schemes or qualifying workplace pension schemes (based on a worker's 'qualifying earnings') increase from 6 April 2018.

From that date, the employer minimum contribution rate is 2 per cent and the staff minimum contribution rate is 3 per cent.

There will be a further increase from 6 April 2019, when the employer minimum contribution rate will rise to 3 per cent and the staff minimum contribution rate will rise to 5 per cent.

The scheme rules or agreements will need to be amended to ensure it continues to meet the qualifying criteria.

If a pension scheme does not increase its minimum contribution levels in line with the statutory requirements, it will no longer be a qualifying scheme for existing members and cannot be used for automatic enrolment.

Pension scheme trustees and providers, employers and payroll and software providers should ensure they have done all that is necessary to comply.

Further information and detailed guidance for employers can be found on the website of the Pensions Regulator at http://www.thepensionsregulator.gov.uk/doc-library/increases-in-minimum-contributions-automatic-enrolment.aspx.

We can assist you in reviewing your pension scheme arrangements to ensure your statutory duties are met.

Contact Samantha Glynn on 0121 698 2200 or email s.glynn@sydneymitchell.co.uk

Whenever advising clients on the preparation of contracts of employment I would always spend some time discussing the advantages and disadvantages of including an express payment in lieu of notice (PILON) clause.  The main advantage of not including an express PILON clause was that any payment in lieu of notice could be paid without the need to apply any statutory deductions (assuming there was no custom and practice of making payments in lieu of notice).

However, legislation has now been introduced which means that from 6 April 2018, any payment in lieu (regardless of whether there is an express PILON clause or not) is now taxable.   The change applies to payments or benefits received on or after April 6, 2018, whether contractual or non-contractual, in circumstances where the employment also ended on or after April 6, 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 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. Non-contractual payments and benefits made to employees in return for their agreement to vary their duties or earnings may, in theory, fall within the £30,000 exemption. 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.

Whilst this change now makes this issue more straight forward,  there are still many other issues to consider when preparing contracts of employment (and a staff handbook).  As such I would always recommend that an employer seeks professional advice and assistance when preparing these documents so that all of these issues can be properly considered.  For those of my clients (very few) who may question whether all of the effort of preparing employment documents is worth it, I will normally respond with the quote from H Jackson Brown Jnr, “The best preparation for tomorrow is doing your best today” .

For help or advice on employment law matters, please contact Samantha Glynn, Solicitor, Sydney Mitchell LLP 0121 698 2200 s.glynn@sydneymitchell.co.uk

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

 

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