News Articles

Please note that the the contents of the following articles are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since the article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

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Equity release plans - what to consider? 10.11.11

If you are approaching or already in retirement and have found that your pensions, savings or shares are not worth as much as you had anticipated, then you may have considered whether an equity release plan could help. It may help in some circumstances.

The main advantages to an equity release plan are a one off payment of a cash lump sum whilst you remain in your home and any money received will be free of income tax.  In the current economic climate these plans have seen a noticeable growth in popularity as people’s post retirement income is squeezed.

There are a variety of plans available. All involve a charge being registered over your property. In return you receive from the equity release company either income, a lump sum or a combination of both, depending upon your circumstances and requirements.

There may be some inheritance tax benefits of taking out an equity release plan. For example, if you have a large estate the value of this could be reduced if you spend the cash released and accordingly it will reduce your inheritance tax liability on death.  However, you will need to consider the implications for your family if your estate is reduced substantially.

Deciding what percentage of your home’s value to release is a key decision.  If you want to ensure that your family inherit a suitable sum from your estate, look for schemes which guarantee a proportion of your estate will remain untouched.

A key issue to consider is that an equity release scheme can only benefit those who own the property unless the cash released is distributed. If you live with someone who does not own the property with you, they may be vulnerable when you die, as the property ownership may pass to the equity release company or the money owed repaid from other assets.

Likewise, for couples living in a property who are looking at equity release, careful consideration must be given where the property is not in joint names.  We can assist in putting the property in your joint names if you wish.

Equity release schemes involve a number of costs, which you need to take into account in addition to the interest payable.  Remember, however, that most schemes involve the deferment of the interest payable on the loan advanced. This will mean that you will be liable to pay interest on the interest charged. This can rapidly reduce any equity in your home to zero. Care must be taken to ensure that the amount ultimately owed does not exceed the value of the property (which it may do if you live a long time following the equity release) or if it does, then you do not owe any more than the value of the house. Additional costs include fees involved in setting up the scheme e.g. brokers fees, arrangement fees, legal fees and disbursements and any administrative fees payable both now and in the future. In addition, if you decide to pay off the scheme early, or change any of its conditions, you will probably be liable for further fees.

Remember that the usual outgoings on your home such as utility bills and council tax will still be payable.  You must continue to ensure that buildings insurance is kept in force, as this will no doubt be a condition of the scheme and in some instances only approved insurers can be used.  

You will have a duty to keep your property in a reasonable state of repair, so it is not devalued. This could be problematic if your health declines or if the property depreciates and is worth less than the loan and interest due.  However, there are some equity release policies with a ‘no negative equity’ guarantee.

If you have taken out an equity release scheme or are planning to do so, we recommend that you update your will and we can help with this.

Remember there can be significant drawbacks to taking out an equity release scheme, the main is that the cash you ‘free up’ is the capital locked in your home and in most circumstances this is an appreciating value. You will also be paying interest upon interest and so financially it is not a win-win situation. For these reasons an equity release scheme should be considered only for extreme circumstances and not simply, for instance, to pay for a holiday! When considering any equity release plan, independent legal advice should be sought at the earliest opportunity so that your proposals can be discussed and the best advice given to assist your needs. Please note that we cannot however give you investment advice as we are not authorised to do so and specialist tax advice from an accountant may be appropriate in some circumstances.

For advice about equity release plans and what to watch out for contact Hugh Nicholls.

Outsourcing: the good, the bad and the contract. 10.11.11

Have you thought about outsourcing any of your business functions to a third party provider to free up time and resources?  Whilst outsourcing is typically thought of as a cost saving activity, there can be a number of other advantages including control of capital costs, increased efficiency, access to scarce expertise and the ability to focus on your core business.

However, outsourcing any business function also carries risks as you lose an element of direct control.  In order to minimise these risks, it is important to involve us at the earliest opportunity to ensure a successful outsourcing exercise.

When choosing an external provider, you need to do your research carefully.  You will engage in a long term relationship with the outsourcing provider and so you must be sure that you feel comfortable doing business with them.  The relationship will need to be managed carefully and you should consider appointing one member of your staff to be responsible for liaison to minimise the potential for miscommunication. 

Once you have chosen your preferred provider, take your time to consider the terms on which you expect the relationship to work and make sure that these are documented and communicated clearly. 

Make sure that you consider the impact of changes in your business over time. How will the arrangement cope with changes in your business, such as new product lines or shorter timescales for delivery? How will changes in the outsourcing provider’s business, such as a change in its management or its relocation, affect your relationship?

A properly prepared service level agreement will deal with the details of the relationship to include standards of service, delivery timetable, payment terms, any arrangements for dispute resolution, damages to services and how the agreement may come to an end.  The latter is especially important if you become unhappy with the service or your business circumstances change and you wish to either appoint another outsourcing provider or take the business function back in-house.  These terms must be set out clearly in the agreement or the outsourcing provider could claim compensation if you terminate the agreement. 

You may also need to establish who will own any business assets necessary for performance of the service and to whom assets will belong when the outsourcing agreement comes to an end.

Do not forget your obligations under the Data Protection Act 1998.  If the outsourcing arrangement will involve the transfer of personal data, you will need to be sure that you comply with these obligations, particularly where personal data is transferred outside of the European Economic Area. 

The outsourcing arrangement may involve your business transferring staff to the outsourcing provider and the transfer of staff when the agreement terminates so be sure to ask our advice on the employment law implications of the transfer before contracting with a new supplier.   

To ensure that you maximise the chances of a successful outsourcing arrangement, talk to us as soon as possible and we can advise you on the points you will need to consider to minimise the risks outsourcing may pose to your business. 

For advice on any aspect of outsourcing or service level agreements please contact Andrew Heeler.

Employers guide to the Agency Workers Regulations. 10.11.11

Do you use temporary agency workers?  If so, you need to know about the Agency Workers Regulations, which come into force on 1 October 2011.  This article explains the new law and what you need to do to prepare for it.

Background

The Agency Workers Regulations implement the EU Temporary Workers Directive, which aims to ensure that temporary workers have basic working and employment conditions no less favourable than if they had been recruited directly by hirers as permanent employees.  The Directive also provides for equal access to facilities and the right to be informed about job opportunities.  The Government has published guidance which you can access here: Agency Workers Regulations Guidance

The right to equal basic working and employment conditions

After a 12 week qualifying period, you must provide an agency worker with the same basic working and employment conditions as your permanent staff.  This covers working time, rest periods, rest breaks, night work, holidays and pay.  “Pay” includes basic pay, holiday pay, bonuses related to work done, overtime and luncheon vouchers.  It does not include pension schemes, contractual notice pay, redundancy pay, expenses, benefits or sick pay.

The good news is that this right will not apply if the temp signs a permanent contract of employment with the agency and is paid between assignments, although the bad news is that this cost is likely to be passed on to you by the agency.

Rights for pregnant women

You will have to give pregnant agency workers paid time off for ante-natal care after 12 weeks in an assignment.  They will also have the right to a health and safety assessment and will need to be moved to another assignment or be suspended on full pay if a risk is identified.

The 12 week qualifying period

The Agency Workers Regulations are not retrospective, which means that an agency worker who has already started an assignment on 1 October will not get credit for any previous service.  The 12 weeks are continuous calendar weeks and there is no minimum number of hours each week.  Maternity, paternity and adoption leave will count towards the 12 weeks; a break in the assignment of less than six weeks, jury service, sickness and holiday will not count but the 12 weeks will start to run again when the worker returns to work.  A break of more than six weeks or moving to a substantively different role will mean that the 12 weeks start to run again from scratch.

If you attempt to avoid the qualifying period, you can be fined up to £5,000 and the agency worker will automatically receive equal treatment.

Access to facilities

From day one of an assignment you will have to give agency workers access to all shared facilities open to your permanent employees, such as canteens, crèches, gyms, transport services and staff car parks.

The right to know about permanent vacancies

From the start of an assignment an agency worker must be given information about any permanent vacancies you have, although you are not obliged to offer the job to the temp.  You can give this information via a notice board, in-house newsletter or intranet.

Liability for a breach of the Agency Workers Regulations

Generally the hirer is liable under the Agency Workers Regulations and an agency will only be liable if it is responsible for the breach.

Preparing for the new law

If you intend to use agency temps after October 2011, you should take the following steps:

• review permanent employees’ terms and conditions and consider how you will match them for agency workers
• if the cost is too high, consider whether you can reduce the terms for permanent staff but take legal advice before you do this, as there are risks involved
• discuss the implications of the Agency Workers Regulations with the agencies you use and agree how you will pass information to each other
• consider obtaining indemnities from agencies for any breaches by them of the Agency Workers Regulations
• ensure temps will be given information about permanent vacancies
• check that temps will have access to the facilities you offer to permanent employees.

Conclusion

A recent survey by the Recruitment & Employment Confederation showed that more than 80% of employers intend to maintain or increase their use of temporary labour in the next 12 months.  If you plan to continue using temps, it is important that you are aware of your obligations and take action to ensure that you are prepared for the new law.  Please contact us if you have any queries or need any assistance. We can advise you as to how the Agency Workers Regulations will impact on your business and the specific actions you need to take.

For advice on any aspect of employment law, including steps you need to take to comply with the Agency Workers' Regulations please contact a member of the employment law team, Martin, Tim or Emma.

Cloud computing: Not always a silver lining. 21.07.11

Cloud computing is one way of fulfilling your IT requirements online.  Applications and documents can all be stored remotely and accessed over the internet through a web browser. At first glance the concept of cloud computing may provide an ideal and cost-effective way to manage your business’s IT needs.  Benefits include reduced IT costs, scalability, flexibility of working methods, readily available support and access to new technologies. 

There are, however, a number of legal risks associated with cloud computing which you should know about and take steps to mitigate.   Many cloud computing service providers offer a contract containing standard terms and conditions.  Your business should not agree to one before considering the points addressed below:

Data security and regulation

Who will store your data and where will it be stored? 

Often data is stored remotely and sometimes this is outside the borders of the European Economic Area.  You will need to ensure that you comply with all your obligations under the Data Protection Act 1998. This requires that personal data must not be transferred outside the European Economic Area unless that country or territory ensures an adequate level of protection for those whose personal data is being processed, such as your customers and employees. 

You will be legally responsible for ensuring that all such personal data is adequately protected, so it is essential that you undertake due diligence in this area before allowing data to be transferred to a cloud service provider.  You should also consider who at the cloud service provider will have access to your data and how this will be controlled and secured.   In addition, make sure that you know what law will govern your contract with the service provider.  It can be very costly and frustrating to take legal proceedings in a foreign jurisdiction.

Supplier stability and service level agreements

You should undertake careful technical due diligence to understand how stable the cloud computing provider’s service will be, for example:

• who will bear the risk in the event that the internet crashes?
• how vulnerable are the systems to damage or downtime owing to earthquakes, fires, floods or computer viruses or hacking? 

Many providers expect to suspend their services at any time in the event of unanticipated downtime or unavailability, without liability to their customers.   Cloud service agreements often limit the cloud service providers to “as is” services with no warranty. Be sure to read the indemnities and exclusions in the cloud service agreement very carefully and consider how your business may be affected.  Talk to us to ensure that a service level agreement is in place that addresses all your concerns, including monitoring and dispute resolution procedures.  

It is advisable to make sure that any business insurance you have will continue to protect you as anticipated if you sign up to cloud computing services.

Also, check the service level agreement you have with your internet service provider since any problems with their service provision will affect your business’s ability to access the “cloud”.

Intellectual property rights and trade secrets

You will need to ensure that your business’s intellectual property rights and trade secrets are protected.    Consider what your rights of redress will be if these are infringed in the country where the data is held.  How practicable will it be to pursue infringements in that country?

Make sure that the contract with the service provider has appropriate non-disclosure provisions and ask us to review these.

Will any third parties have access to your data under the law of the country where the data is held?  For example, legal authorities such as revenue and other government departments may have statutory rights to search and seize data under subpoena in the country in which the data is stored.

Ending the contractual arrangement

As with all contracts, think about how the contractual relationship may come to an end, including:

• will your business be able to recover all its data?
• how long will this take?
• will it be returned in the same format in which it was provided?
• will the service provider have any obligations to assist with transferring the data to a new service provider?
• what will happen to your data if the service provider goes out of business? 

Cloud computing can offer many businesses a measurable reduction in IT costs, but the service often comes with material risks to your business.   Careful planning and good legal advice at the outset can help reduce these risks to your business.  

If you have any queries about cloud computing and protecting your data not covered in this article please contact Andrew Heeler.

Is my lease protected? 21.07.11

As a tenant there are various reasons why you may want a protected lease, security being the main one. If the goodwill of your business is built around your premises then you will want to know that you have control over this.

Conversely, a landlord is likely to want to retain control of their premises.  For example, they may wish to be able to refuse a defaulting tenant a new lease or to re-develop the premises.

When negotiating a new lease, you are likely to come across the terms ‘protected lease’ and ‘contracting out’, but what do they actually mean for a tenant and what are the implications long term?

• The term ‘protected lease’ relates to the statutory protection for tenants under the Landlord and Tenant Act 1954. This means that when the contractual term of the lease expires the tenant has a statutory right to request a new lease from their landlord on similar terms to their existing lease and they are not obliged to vacate the premises.

Assuming that the lease is not a type of tenancy that is specifically excluded by the 1954 Act, there are certain criteria that must be satisfied in order for a lease to become protected: the tenant must occupy the premises for business use, have exclusive occupation of the premises and the lease must be granted for a fixed term.

• The landlord may exclude the lease from this protection through the lease being ‘contracted out’.  There is a statutory procedure that must be strictly followed by the landlord in order to do this. Where a lease has been contracted out, the tenant is obliged to vacate the premises at the expiry of the contractual term and has no automatic rights to renew.

Common questions which arise regarding protected and contacted out leases are:

What is the procedure for renewal of a protected lease?

If you wish to renew your lease, then you will need to serve what is called a ‘section 26 notice’ on the landlord setting out the proposed new terms for a lease. Alternatively, the landlord can serve a section 25 notice stating whether or not they are prepared to offer a new lease and if so on what terms. There are certain time limits that must be complied with in responding to either a section 25 or section 26 notice.

Until such time as either notice is served, a tenant will be considered to be ‘holding over’ which effectively means that they can remain in occupation pursuant to the terms of their existing lease until a notice is served.

The ‘holding over’ period can last years, and indeed in some cases neither the landlord nor a tenant ever serves a notice. If both parties agree then the statutory procedure does not necessarily need to be followed.

In what circumstances can a landlord refuse to renew a protected lease?

There are very limited circumstances where a landlord can refuse to grant a new lease.  The most common is where a landlord wishes to either re-develop their premises or to use premises for their own purposes. This has to be a serious consideration by the landlord and not just a whim to get vacant possession and compensation may have to be paid to an outgoing tenant.

What is the procedure for contracting out of a new lease?

You will usually have agreed that the lease is to be contracted out before the lease is drafted but in any case certainly before you are contractually bound to take the new lease. Therefore if you are proceeding with a contract (agreement to lease) the contracting out procedure must be followed prior to exchange of contracts.

In order to do this the landlord must serve a notice confirming that your right to statutory protection is being contractually excluded.  This notice must be served at least 14 days before the contract or lease is entered into and you will then need to sign a ’simple declaration’ to confirm receipt of the notice.

If there are time pressures to exchange or complete and the landlord’s notice is served less than 14 days before exchange or completion then you will need to swear a statutory declaration in response.

Can a lease that has been contracted out be varied so that it becomes protected?

There is no provision in the 1954 Act that prevents this, but by the same token there is no provision that allows for it either. It is not a recommended approach as it could, for example, translate as being a surrender and re-grant which can have far reaching tax and  other consequences.

If you want to remain in the premises after the expiry of the contractual term and the landlord is agreeable, it may be better to enter into a reversionary lease, one that is completed before the lease term starts, or to enter into a contract for a new lease.

You would need to take advice as to the specific circumstances.  This is a complex area of the law and a landlord and a tenant should always seek legal advice before agreeing a new lease.

Hegarty's commercial property experts are perfectly placed to advise on the right kind of lease for your business.

It's never too early... don’t leave a mess for your children. 21.07.11

Five days after Alan and Jennifer waved their youngest daughter off to university, they were relaxing in the Caribbean.  Sadly, their second honeymoon was not to last.  Having received an urgent message and discovered that Alan’s mother, Helena, had suffered a stroke they boarded a plane and were home again within 36 hours...

Helena’s stroke was quite serious as she lost the use of her right arm and leg and it soon became clear that it would be very difficult for her to look after herself. 

To add to their worries, Alan’s 82-year old father, Geoff, had been diagnosed with early stage Alzheimer’s’ and was going to need care.  Helena had been fifteen years younger and everyone had expected her to be caring for Geoff in his old age, rather than the other way around.

Helena also had some memory loss and confusion, so it looked unlikely that she would be able to manage their financial affairs which were relatively complex, having run a successful business together prior to their retirement.

Earlier that year when Alan and Jennifer had been planning their new ‘care-free’ life, they had discussed updating their wills.  They had even been in for a chat with their solicitor who had recommended also creating a lasting power of attorney and had asked them about their parents’ provisions too. 

They knew that wills were in place, but had gone away planning to speak to Helena and Geoff about a power of attorney.  Somehow the moment had never seemed right and it was an awkward subject to bring up.

Fortunately, with the help of their solicitor, Helena and Geoff had sufficient mental capacity and were able to make lasting power of attorneys, setting out their wishes regarding how they wanted their finances to be managed and by whom.  They also made separate lasting powers of attorney with provisions for their care and personal welfare.  However this might not have been possible if the stroke had been more serious and Geoff’s Alzheimer’s’ had been more advanced.

Meanwhile Alan and Jennifer suffered a great deal of additional anxiety and were faced with a mountain of concerns and a stream of very important decisions to make regarding the care of both parents.  Anxious to avoid a similar problem for their children, Alan and Jennifer have since updated their wills and created lasting powers of attorney for their financial affairs and their personal welfare.

For more information about powers of attorney please contact a member of the Wills, Trust & Probate department.

Tackling harassment and violence by customers, suppliers or the public. 21.07.11

Sadly there has been notable growth in employees suffering harassment or even violence in the workplace.  What can an employer do to protect their staff?

According to a Eurofound survey undertaken in 2005, five per cent of EU workers had been exposed to violence at work and 75 per cent of incidents had been perpetrated by someone from outside the work place. 

In September 2010, employers’ organisations and trade unions across the EU signed up to guidelines to help tackle third-party violence and harassment at work by non-workers such as customers or members of the public.  The agreement covers the health care, education, local and regional government, commerce and private security sectors.

The aims of the guidelines are to ensure that every workplace has a results orientated policy in place to address this increasingly problematic area.  Harassment and violence undermine employees’ health and dignity at work and has an economic impact in the workplace due to increased absences, lower morale and increased staff turnover. 

Harassment and violence can:

• be physical, psychological or sexual
• be one-off or more systematic patterns of behaviour
• be among third parties such as clients, customers, patients and pupils; and
• range from minor cases of disrespect to more serious acts, including criminal offences.

The guidelines set out some practical measures for employers, workers and their representatives to reduce, prevent and help mitigate the issues that arise from third-party violence and harassment.  These include:

Raising awareness

The need to raise awareness of the issue amongst employers, employees, service users and other third parties is paramount. The guidelines suggest that this can be done by various methods including providing literature and training.  In particular, they identify the need to train managers and workers about the issues.

Having a policy

The guidelines should be incorporated into health and safety policies and employment procedures, and a health and safety risk assessment should be carried out. The policy framework should include:

• on-going information and consultation with managers, workers and their representatives;
• providing a clear definition of what third party violence and harassment means, including examples;
• providing appropriate information to third parties and informing them that such behaviour will not be tolerated;
• providing on-going and regular training for managers and employees, including how to avoid or manage any conflict that might arise with third parties;
• establishing a procedure which will allow the monitoring and investigation of any allegations;
• providing support for employees that are exposed to third party violence and harassment;
• establishing a requirement to report such incidents to the employer and to other outside agencies such as the police.

Monitoring and reviewing

The guidelines also state that any policy which is introduced should be monitored and kept under regular review so that appropriate changes to the policies and procedures can be made accordingly. 

It is worth remembering that, notwithstanding these guidelines, you have an obligation under health and safety legislation to ensure the health and safety of your workers.  Employees also have a responsibility, as far as possible, to take care of their own health and safety and of others affected by their actions at work in accordance with any training and instructions you have given. 

Whilst these guidelines were developed for certain industries, it would be good practice to introduce them as part of your general health and safety measures.

You should also note that the Equality Act 2010 does have provisions which could make you liable for the harassment of your employees if the harassment is related to one of the protected characteristics covered by the Act.  These characteristics include age, gender, sexual orientation, race, religion belief etc.

Martin Bloom is happy to answer any queries you have concerning employee protection from third parties.

Is a joint venture the way to grow your business? 11.05.11

Many businesses continue to find it hard to access capital for business expansion.  Entering into a joint venture may be an alternative solution in some cases.  A joint venture involves two or more businesses pooling their resources to achieve a shared business goal, usually to increase market share.

Joint ventures can be structured in a variety of ways. For example, two businesses may set up a wholly separate company in which they both own shares or the businesses could enter a partnership. Alternatively the businesses may simply agree to co-operate in a specific and limited way. You will need specialist legal advice on this because the chosen structure can affect how the joint venture is managed, what profits and risks each business will take and how it will be taxed. 

In addition, before approaching potential joint venture partners, you should take legal advice on how to protect your existing business’s trade secrets and intellectual property rights and any other legal issues specific to your business.

Joint ventures can offer many benefits, including;

• access to a greater pool of skills and technology resources

• reduced research and development costs

• shared business risk

• greater operating capacity

• access to new or bigger markets

• a broader range of distribution channels. 

Potential risks in a joint venture include integration difficulties arising from a greater number of people collaborating, different parties having conflicting aims for the joint venture and conflict where one party believes that the business contributions or risks are borne inequitably. Cultural differences should not be underestimated.

Key pitfalls include rushing into an arrangement without adequate research and planning, and poor integration procedures can create long term problems.  It is important to review your business strategy to see that your expectations for the joint venture are realistic and are aligned with your business’s best longer term interests.  Careful integration planning can help diminish negative staff morale from cross-cultural issues and fears for job security.  Clear communication at all stages is key.

A written joint venture agreement is crucial.  It should set out the structure of the joint venture, its aims, the sources of its funding, intellectual property arrangements, who will manage and control each element of the joint venture, how any deadlock is to be resolved, arrangements for the division of profits and losses, dispute resolution procedures and how the agreement will be terminated.

As with all business agreements, it is important to consider your exit strategy at the outset. Termination may be by notice, expiry of a fixed term or in joint venture limited companies, by one party buying out the other party.  In all arrangements be sure to know how confidential information will be protected after the joint venture ends. Who will deal with individual customers? Who will own resulting intellectual property? How will continuing income and liabilities will be treated?

A friendly, open and informed approach at the outset of negotiations, together with a written agreement recording the details of the agreement can save time and money when the joint venture concludes.  Legal advice at the outset is advised to help achieve a positive outcome.

We would be pleased to advise you on any plans to enter or look for a joint venture arrangement. Contact Andrew Heeler.

Changes to Family Friendly Working from April 2011. 11.05.11

Employers need to be aware of three key changes to family friendly regulations that came into force in April.  These could be the first of many as both the Conservatives and the Liberal Democrats pledged to provide more family friendly ways of working in their manifestos and these translated to a joint commitment to, “encourage shared parenting from the earliest stages of pregnancy”.

Whilst it is not yet clear what this might mean in practice, before the general election the Conservatives and Liberal Democrats made pledges to:

• allow parents to share maternity and paternity leave;
• extend parental leave for up to 18 months in certain circumstances; and
• give fathers the right to have time off for ante-natal appointments.

New legislation that came into force in April 2011 introduces:

• new statutory payment rates;
• an extension to additional paternity leave and pay; and
• an extension to the right to request flexible working.

New statutory payment rates

From 11th April 2011, statutory maternity, paternity and adoption pay and maternity allowance rose from £124.88 to £128.73. The weekly earnings threshold for these benefits increased from £97.00 to £102.00 except for maternity allowance where it remained at £30.00.

Additional paternity leave and pay

Eligible parents of babies born on or after 3rd April 2011 will have the right to take between 2 to 26 weeks paternity leave to care for an eligible child if the mother returns to work early. The father must give his employer eight weeks notice in writing of a request for leave and this notice must contain certain information as prescribed by law. Employers must respond to requests for leave within 28 days of being notified and leave must be taken in minimum blocks of one week.

Additional paternity pay will become available to fathers if they take leave during the period when mothers would ordinarily receive statutory maternity pay. This effectively means that the statutory maternity pay currently payable may be split between the father and the mother depending on when they take the leave.

Parents who are notified that they have been matched with a child for adoption on or after 3rd April 2011 will have similar rights and obligations.

The right to request flexible working

Currently, employees have a right to request flexible working, in respect of a child who is 16 years or younger or under 18 if the child is disabled or if they have carer responsibilities for certain groups of adults.

The coalition government has stated its intention to extend the right to request flexible working to all employees so as to help them balance their work and family commitments. It was expected that this would be extended to all eligible parents with children under the age of 18 this year but no firm date has been set, since the proposal was postponed in the Spring Budget.

Future UK developments

On 17th January 2011, the Deputy Prime Minister, Nick Clegg  announced  a consultation exercise to look at how best to extend the right to flexible working to all employees, to ensure that:

• any new arrangement had to continue to maintain women's guaranteed right to paid time off in the first months after birth and protect the rights of lone mothers;
• the reforms would need to transform the opportunities for fathers to take time off to care for their children;
• it would be possible for mothers and fathers to share part of their leave, splitting it between them, in whatever way suits them best; and
• the new system must take into account the needs of employers and it must be simple to administer.

Nick Clegg said that there was still a stigma attached to men taking leave and that a paltry two weeks of paternity leave patronised women and marginalised men.

Business Secretary, Vince Cable went on to say that the government wanted to consult with businesses on how best to proceed.  The government says it is conscious of the concerns of some companies, especially SME’s, whilst wanting to assure all that flexible working leads to motivated and productive workplaces.

Future European developments

Similarly, the European parliament has also been busy with proposals to amend the Pregnant Workers Directive. If implemented, it will extend the minimum period of maternity leave from 14 to 20 weeks on full pay and will introduce two weeks of paternity leave for fathers also on full pay, rather than the current statutory rates.

Whilst the UK have expressed their opposition to the proposals as “socially regressive”,  believing those employees earning the most will benefit the most, it also opposes it on the basis it will make it harder for the UK to introduce a new system of shared parental leave.

It remains to be seen whether all these additional provisions will be introduced in the future, however, it seems certain that further changes to family friendly working are in store.

If you have any queries relating to the new family friendly policies do not hesitate to contact a member of the Employment team.

Inheritance disputes on the rise... 11.05.11

In recent years the number of families contesting a relative’s will has risen by 200%, and it is said that that one in ten adults have fallen out with a family member over inheritance. This is due to a number of factors: the increase in the value of estates, greater awareness of peoples’ rights, higher rates of divorce, re-marriage and co-habitation. 

What can you do to prevent disputes after your death, particularly if you believe that your wishes may be unpopular with some relatives?  On what grounds can you challenge a will, if you believe that you have been unfairly treated?

In England we have no legal requirement to remember our family members in our wills, or any need to treat them equally but it is wise to do so because a Court can always look at what you have done and decide whether reasonable financial provision has been made for those who, for example, were dependant on you. Usually, however, it is not possible to challenge a will just because it may be considered unfair. 

You have every right to disinherit any or all of your family and leave your assets to a charity of your choice, provided that you are of sound mind and prepare a valid will. 

The key is in the word ‘valid’.  A will can be challenged if it is invalid, which could be on a number of grounds:

• lack of proper formalities
• lack of testamentary capacity
• lack of knowledge and approval
• undue influence and fraud.

It may be tempting to download a do-it-yourself will from the internet, but using a solicitor to prepare your will, especially if it may be contentious, will provide you with the safeguards to ensure that your will cannot be challenged and that your wishes are carried out.  As your solicitor, we will ensure that the formalities are complied with.  We will also affirm that you are of sound mind and have not been subjected to undue influence.  We will document your reasons and ensure that you understand the consequences, to combat any claim that you did not know what you were doing.  If you are planning to do something that you know might upset your family, for example leaving a child out, then this becomes extremely important.

What if you are worried that a relative’s will does not reflect their wishes?  If you think that it was drawn up in suspicious circumstances or that your relative may have been subject to undue influence then you should contact us for advice as soon as possible.

There are strict time limits for contesting a will and if you have a valid claim, it is important to act to prevent the assets of the estate being distributed.

The time and cost involved in pursuing these court cases should not be underestimated, so it is also important to establish that you would benefit as the result of a successful challenge as the court may revert to a previous will, or even intestacy rules if the disputed will is declared invalid.

Will disputes are not going to go away.  Making sure that your will sets out your wishes clearly and that your solicitor knows your reasons can solve a lot of problems in the future.  Unless you do this, there will not be anyone who knows your ‘side’ and that is where the arguments can start.

For advice on making your own will or if you think that a relative’s will may be invalid, please contact a member of the Wills, Trusts & Probate department.