Sexting – Flirty Gertie or Dirty Bertie?

horny devil

Sexting – harmless fun or adultery?! Depends who you ask and its not just confined to stars of our favourite soaps! Whether you are the sextor or the sextee this can be a deal breaker in a marriage. Perhaps it is just harmless fun but to your spouse it may be the ultimate betrayal! What then if you decide the marriage is over and you want to divorce; is it adultery? The answer is no unless it is accompanied by sexual intercourse with a person of the opposite sex. What then is the recourse to the spouse who feels betrayed? – they are able to proceed with a divorce citing the behaviour of the other as unreasonable. Everyone’s tolerance is different but the majority may find that sexting someone other than your spouse is unreasonable.

If you have found yourself in Dyer circumstances then our specialist team of solicitors are able to offer you sympathetic and straight forward advice in relation to your options. Contact us by calling 01992 558411 or alternatively complete our online enquiry form.

Olive McCarthy MCIArb–(Director and Head of Family Department) – Olive joined the firm in 2000 and was appointed as a Partner and Head of the Family Law Department in the old firm in 2004. Olive has had panel accreditation with the Law Society as a Family Law Specialist since 2003 and has been a Collaborative Lawyer since early 2009.  She is also accredited with the Chartered Institute of Arbitrators as a Family Law Arbitrator since early 2013, a prestigious accolade that few have achieved in the UK.

Olive specialises in dealing with complex finance cases, particularly high net worth cases.

 

 

 

 

 

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The Directors’ Friend: – Facing Personal Liability for ‘Wrongful Trading’ – Call for ‘Robin Hood’

This is the next in my series of blogs for the Director’s Friend.

SUMMARY

In order to obtain an order from the court that a director is personally liable for wrongful trading under section 214 of the Insolvency Act 1986 (the ‘Act’) the Liquidator or Administrator have to not only prove the elements of wrongful trading, but they must demonstrate how the wrongful trading caused an increase in the company’s net deficiency. That is its losses.

That is the company should objectively have been placed into Liquidation at X date. It was not. The net deficiency has increased as a consequence – by how much? No evidence = no personal liability.

SECTION 214

In summary, this is claim for personal liability against a director of a company. The claim is made up of the following:

  • The company is insolvent and is in Liquidation or Administration;
  • A person has been a director of that company at any time; and
  • At some time before the commencement of the winding up of the company, that person knew or ought to have concluded that there was no reasonable prospect that the company would avoid going into insolvent liquidation or entering insolvent administration.

The court, on the application of the Liquidator, may declare that that person is to be liable to make such contribution (if any) to the company’s assets as the court thinks proper.

The court shall not make a declaration if that person took every step with a view to minimising the potential loss to the company’s creditors as they ought to have taken.

That takes into account:

  1. the general knowledge, skill and experience that may reasonably be expected of a person carrying out the same functions as are carried out by that director in relation to the company, and
  2. the general knowledge, skill and experience that that director has.

BACKGROUND

A recent appeal case heard by David Foxton QC on appeal from Registrar Jones (Brooks and another (Joint Liquidators of Robin Hood Centre plc (In Liquidation) v Armstrong and another [2016] EWHC 2893 (Ch)) the directors successfully appealed the amount of compensation payable by them.

The Registrar in the earlier decision had held that the directors had been guilty of wrongful trading; that the net deficiency of the company had on the evidence increased and that as a consequence the directors had to contribute £35,000.00 to the company’s assets.

That was in circumstances where the directors were facing a claim in a sum in excess of £700,000.00.

The directors were faced with a number of dates on which it was claimed that they knew or ought to have known that the company was facing insolvent liquidation. The Registrar found that the directors had that knowledge on one date, but were not wrong to continue to trade until a later date. That was because up to that later date the directors were taking steps to minimise further losses to creditors.

FINDINGS

Essentially, the Liquidators were found on the facts to have failed to make out their case that there had been an increase in the net deficiency (losses) of the company during the period of wrongful trading. This is fundamental irrespective of losses caused to individual creditors.

No increase in the net deficiency = no case.

COMMENT

Following this decision, it shows that a Liquidator or Administrator must show that the wrongful trading alleged actually caused losses to creditors of the company.

From a director’s perspective, it shows that there are risks when you are a director of a company that is or maybe trading insolvently to you personally. However, with the early and right advice this can be mitigated or even perhaps with the assistance of Robin Hood defeated…

I understand, however, that the Liquidators have applied for permission to appeal this decision – watch this space.

WRONGFUL TRADING AND DIRECTOR DISQUALIFICATION

The well-advised director will also be mindful of the risk in section 10 of the Company Directors Disqualification Act 1986 that states:

‘(1)       Where the court makes a declaration under section 213 or 214 of the Insolvency Act 1986 that a person is liable to make a contribution to a company’s assets, then, whether or not an application for such an order is made by any person (emphasis added), the court may, if it thinks fit, also make a disqualification order against the person to whom the declaration relates.

(2)        The maximum period of disqualification under this section is 15 years.’

The directors of the company were perhaps fortunate that the Registrar chose not to also exercise the jurisdiction to disqualify the directors from acting for a period of time.

WHAT TO DO NOW

If you are faced with insolvency issues with your company, a wrongful trading claim for personal liability or director disqualification proceedings please talk to me today. That is in order to protect your position without delay. The earlier that you speak with me the more that I can help. Why not call me today on 01992 558 411 and speak to me without obligation, pressure or cost.

If you are happy to instruct me my firm and I are happy to talk to you about fixed fees or staged fees that are agreed with you in advance of any work being carried out or we can liaise with your insurers. Your work will be carried out by me or others under my close supervision. I am happy to come to you to take instructions. My firm is based in London and Hertfordshire, here in the UK.

YOUR ADVISER

Finally, is you advisor a practising solicitor (and thus insured to advise you – check with the SRA) and if so is your solicitor a full member of the Insolvency Lawyers Association (‘ILA’) (ask them). Membership of the ILA is a public mark from insolvency peers that your representative has the requisite knowledge, skill and experience to advise you. I am both. Accept no substitutes.

Until the next time…

THE DIRECTORS FRIEND

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New Telephone System

In order to improve the service that we provide to clients and callers, a new telephone system is due to be installed at Breeze and Wyles during the week commencing 20th February 2017.

There is likely to be a short interruption to telephone services at some stage early that week whilst the work is completed to change over to the new system. Please be patient with us whilst the new system is being installed. The new system will enable us to greatly enhance our call handling services to all our clients so we hope you will bear with us while the installation takes place,

Thank You

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Government Consultation suggests that you should review your Debt Procedures!!

On 23rd December last year, the government announced that they will discuss new measures to protect consumers from unknown debt claims. The upcoming consultation will consider how to  protect consumers against unsuspected debts or unknown claims, but also allowing appropriate redress for companies that are owed money. The government has highlighted that both consumers and companies should take steps to ensure that the information they have is up to date to help circumvent this issue. The government has also advised that a public advice campaign will be launched sometime this year to provide straightforward guidance to consumers on ‘how to communicate accurate address information, find out about outstanding claims and how to challenge erroneous claims.’

The government website states that the consultation will look at ways to:

  • better protect consumers who are sent mail to inaccurate addresses
  • verify addresses again before a claim is sent
  • protect people’s credit scores from being damaged if they resolve outstanding debts quickly
  • consider how modern communication could notify people of outstanding debts
  • assess the role of parking companies and examine how drivers are informed of fines

Although this is a positive step by the government, as it aims to improve the current system and ensure consumers are more knowledgeable surrounding their debts, it can mean more responsibility on our commercial clients when chasing after bad debts. Sharon Matchwick, from our business services team, comments that:

‘more diligence is required on the part of commercial companies to ensure that they are sure they are sending their Letters before Action (LBA) and issuing claims against the right people’.

In the first instance, this can mean more chance of your debts being repaid and more quickly by LBA, claims being issued correctly first time round and less chance of them being challenged for being erroneously brought. However, this also effectively means companies having to set aside more time to satisfy themselves of who their debtor is in the first place. Breeze and Wyles has the expertise to advise you and the systems in place to carry out initial checks against debtors which can save you valuable time and money in the long run.

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Reuse of a Prohibited Company Name by a Director leaves the Director caught in an expensive web!!

This is the next in my series of blogs for the Director’s Friend.

SUMMARY

Following a prosecution for breach of section 216 of the Insolvency Act 1986 (the ‘Act’) (re-use of a prohibited company name by a director) with confiscation proceedings following the Court of Appeal recently concluded that:

  • a confiscation order can be made against an individual who is convicted for trading under a prohibited name / style; and
  • the court is entitled to hold that the total turnover (not just the net profit) for the entire period of trading under that name is recoverable.

SECTION 216

In summary, this is where a director of a company reuses the same or a similar name to a company that has entered into insolvent liquidation, so as to suggest an association.  This name is known as a “prohibited name”. This can include any name registered at Companies House, a trading or other name.

BACKGROUND

A recent Court of Appeal decision R v Neuberg [2016] EWCA Crim 1927 handed down by Lord Thomas of Cwmgiedd, CJ considered the law of confiscation following a successful prosecution against an individual for breach of section 216.

The appeal was as a result of a reference by the Criminal Cases Review Commission (‘CCRC’).

The Appellant was a director of company Watergate Services Limited trading as ‘Neuberg Metal Spinners’ (the ‘Company’) which went into liquidation on 19 November 2001.

By the time that the Company was placed into liquidation the Appellant was trading in her own name as ‘Neuberg Metal Spinners’.

After 19 November 2001, it was not lawful for the Appellant to use the name of “Neuberg Metal Spinners” but she continued to use that style until 14 June 2002.

The Appellant was charged with trading under a prohibited style, namely “Neuberg Metal Spinners“, without the leave of the court, between 19 November 2001 and 14 June 2002 contrary to section 216 of the Act.  She pleaded guilty to that offence on 12 November 2004.

She was given a community sentence and disqualified from being a company director for five years.

Further, a formal Order for confiscation was made on 12 April 2006. The benefit was the turnover of the Appellants trading in the sum of £288,948. The realisable assets were £100,000.  The Order was made in the amount of £100,000.  The judge fixed the term of imprisonment in default at two years and ordered the appellant to pay £7,500 towards the cost of the prosecution.

The Appellant paid £100,000 as ordered.

FINDINGS

It was found by the Court of Appeal that:

  • the criminal activity was carrying on the business in the prohibited name;
  • it was clear that the Appellant carried on the business under a prohibited name;
  • it was the carrying on of that business under that name that gave her a significant benefit;
  • For present purposes, it was sufficient to say that, as the court held in 2007, the judge was unquestionably correct in calculating the benefit by reference to the turnover; and
  • On the basis of the information (a lack of financial analysis of the accounts) put before the Court, that there was nothing from which the Court could infer that the amount of the confiscation order in the sum of £100,000 was in any way disproportionate.

The Court observed that attempting to conduct an exercise in ascertaining the financial position of this business more than 14 years previously was one that would have been fraught with difficulty.

The Court therefore rejected the appeal and stated that it was a matter of some regret that the reference was made to the Court (by the CCRC) without a more careful analysis of the basis on which the reference was to proceed.

COMMENT

Following this decision, any director or other convicted of this offence could be ordered to pay a sum equal to the total turnover for the entire period of illegal trading. This would be in addition to any fine or prison sentence handed down as a punitive element.

The director could also be disqualified from acting as a company for a period of time.

In addition, again that director / individual could also find themselves personally liable to repay the creditors of the business under section 217 of the Act, although possibly not in the case under discussion. So, heavy sanctions!

WHAT TO DO NOW

If you are faced with a claim for personal liability or a prosecution under these sections please talk to me today. That is in order to protect your position without delay. The earlier that you speak with me the more that I can help. Why not call me today on 01992 558 411 and speak to me without obligation, pressure or cost.

There are options that are outside the scope of this article to avoid the draconian consequences under this law, but the well-advised director must move swiftly to protect their position.

If you are happy to instruct me my firm and I are happy to talk to you about fixed fees or staged fees that are agreed with you in advance of any work being carried out or we can liaise with your insurers. Your work will be carried out by me or others under my close supervision. I am happy to come to you to take instructions. My firm is based in London and Hertfordshire, here in the UK.

YOUR ADVISER

Finally, is you advisor a practising solicitor (and thus insured to advise you – check with the SRA) and if so is your solicitor a full member of the Insolvency Lawyers Association (‘ILA’) (ask them). Membership of the ILA is a public mark from insolvency peers that your representative has the requisite knowledge, skill and experience to advise you. I am both. Accept no substitutes.

Until the next time…

THE DIRECTORS FRIEND

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Employment of Illegal Workers results in Director Disqualification

This is the next in the series of my blog for the Director’s Friend.

BACKGROUND

In a recent press release the Insolvency Service (‘IS’) show that they are targeting insolvent companies that have been employing illegal workers and where the fines levied by the Home Office were not paid. According to the press release 11 directors from separate companies were disqualified for employing a total of 39 illegal workers across various geographic locations in England.

Following visits from Home Office Immigration officers, during which the illegal worker breaches were discovered, the companies were issued with penalty notices ranging from £10,000 to £15,000 per worker, which remain unpaid. Across the companies talked about in the press release these unpaid fines totalled £450,000.

All 11 of the directors were directors of the companies and were in office at the time of the Home Office visit.

THE INSOLVENCY SERVICE COMMENTS

Cheryl Lambert, the Chief Investigator at the IS is quoted to have said:

‘Employing illegal workers is not a victimless crime. These directors sought an unfair advantage over their competitors by employing people under the radar who were not entitled to work legally in the UK.

If a company is found to be employing illegal workers and not carrying out the checks they are required to by law, then the Insolvency Service will take action to remove the directors from the market place, regardless of whether the company is in Liquidation or not.

This action is a warning to other employers to seriously consider their duties and obligations.’

FURTHER WARNING

A further warning is contained in the press release in circumstances where the company is still active and not subject to insolvency proceedings where the Insolvency Service and the Home Office are working very closely together.

THE WIDER PICTURE

An employer can be sent to jail for 5 years and pay an unlimited fine if they’re found guilty of employing someone whom they knew or had ‘reasonable cause to believe’ didn’t have the right to work in the UK. If that is a director of a company, then they could also be disqualified from being a company director in any event by the criminal court.

In addition, a civil penalty could be levied in the sum of £20,000 for each illegal worker employed.

So, employing someone who does not have the legal right to work in the UK could be very expensive, result in a prosecution and a director disqualification. In addition, a confiscation order could follow!

COMMENT

These kind of civil director disqualifications seem in my experience to be on the increase where the theme is that the company employs illegal workers, is caught by the Home Office and fined. The fine is not paid and the company is placed into formal insolvency. It would appear that it is as a consequence of the Home Office and the Insolvency Service working together to target these cases.

WHAT TO DO NOW?

If you are faced with a claim for director disqualification by the IS please talk to me today. That is in order to protect your position without delay. The earlier that you speak with me as a specialist director disqualification defence solicitor the more that I can help. Why not call me today on 01992 558 411 and speak to me without obligation, pressure or cost. I am a game keeper turned poacher.

If you are happy to instruct me my firm and I are happy to talk to you about fixed fees or staged fees that are agreed with you in advance of any work being carried out or we can liaise with your insurers. Your work will be carried out by me or others under my close supervision. I am happy to come to you to take instructions. My firm is based in London and Hertfordshire, here in the UK.

YOUR ADVISER

Finally, is you advisor a practising solicitor (and thus insured to advise you – check with the SRA) and if so is your solicitor a full member of the Insolvency Lawyers Association (‘ILA’) (ask them). Membership of the ILA is a public mark from insolvency peers that your representative has the requisite knowledge, skill and experience to advise you. I am both. Accept no substitutes.

Until the next time…

THE DIRECTORS FRIEND

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10 Things that you should consider when faced with a Director Disqualification Investigation

This is the next in the series of my blog for the Director’s Friend.

When the Insolvency Service (the ‘IS’) write to you with perhaps a questionnaire or a ‘section 16’ letter there are a number of issues that you should consider:

  • You should never deal with the claim yourself as it is not as straightforward as it may seem. What you say could be used in evidence against you and undermine your objective. Always seek and obtain expert legal assistance – use their expertise to assist you and let them deal with any stress for you;
  • Never just ignore the letters – the investigation and any claim is not going to go away if you just ignore it. It may end up costing you a lot of money with no input from you;
  • Do not be rushed into a response to the IS within the usually short timescale that they give for a response. Always consider your response carefully with the assistance of experienced solicitors. The solicitors can usually seek and obtain an extension of time to respond on your behalf and take away the stress for you;
  • You should never respond to the questionnaire without taking experienced legal advice first. That is because you need to be able to fully identify what the IS are investigating and to respond in the right way;
  • You should never respond to the section 16 threat letter without requesting a copy of the evidence that has been prepared against you. You then need to carefully review the same with an experienced solicitor to formulate the right response;
  • You should always ask your solicitor to identify whether there is a risk of other claims being made against you or other investigations being carried out. The IS investigation is not always the only one in contemplation. You need to avoid accidentally prejudicing yourself;
  • Running another company in the background whilst disqualified as a company director (perhaps as a majority shareholder) – you may believe that you can do this. My advice is that you should never do this as the IS do check and you could be at risk of someone complaining to the IS that you are breaching the disqualification. Remember that the fact of your disqualification is made public. The criminal sanctions are draconian; you could be held personally liable for the company debts and you could be disqualified for a longer period of time;
  • Acting in the management of a company whilst disqualified – you may consider that you can take up another more senior role in the company without being an appointed director. This is not sensible without the right director disqualification legal advice to avoid the draconian consequences outlined above. I have been involved in a case before where the judge found that the disqualified director was acting in the management of a company by arranging that company’s mobile telephone contract;
  • Is a disqualification inevitable? No not always with the right advice; and
  • If you are disqualified from being a company director is that it – do you have to wait out your ban period before you can act as a director again. No – please talk to me about obtaining permission to act as a director even whilst disqualified.

WHAT TO DO NOW?

If you are faced with a claim for director disqualification by the IS please talk to me today. That is in order to protect your position without delay. The earlier that you speak with me the more that I can help. Why not call me today on 01992 558 411 and speak to me without obligation, pressure or cost. I am a game keeper turned poacher.

If you are happy to instruct me my firm and I are happy to talk to you about fixed fees or staged fees that are agreed with you in advance of any work being carried out or we can liaise with your insurers. Your work will be carried out by me or others under my close supervision. I am happy to come to you to take instructions. My firm is based in London and Hertfordshire, here in the UK.

Finally, is you advisor a practising solicitor (and thus insured to advise you – check with the SRA) and if so is your solicitor a full member of the Insolvency Lawyers Association (‘ILA’) (ask them). Membership of the ILA is a public mark from insolvency peers that your representative has the requisite knowledge, skill and experience to advise you. I am both. Accept no substitutes.

Until the next time…

THE DIRECTORS FRIEND

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Directors Duties when the Company may be or is insolvent – Be aware of personal liability stalking you!

This is the next in my series of blogs for the Director’s Friend.

In a recent decision of Terence Mowschenson QC sitting as a deputy High Court Judge in the case of Oakdene Homes PLC (In Liquidation) (the ‘Company’) and Carl Stephen Turpin dated 03 November 2016 the director of the Company in Liquidation was ordered to pay the total sum of circa £825,000.00.

That is a significant sum of money for a director of a company to find post that company’s liquidation. So, what happened?

BACKGROUND

The Company’ business was residential house building. In 2007 there was a sharp slowdown in the market for residential homes as a consequence of the financial crisis.

The judge found that the Company was insolvent from the end of 2007 to 23 January 2009 when it was placed into administration.

THE CLAIMS

The lead claim advanced against the director was for £750,000.00 for a call in respect of subscription monies due on a subscription of shares in the Company.

The judge found that the Company was short of cash in 2008. In about May 2008 the director agreed to subscribe for further shares for a consideration of £750,000.00. The judge referred to contemporaneous evidence where it was found that the shares had been allotted and the liability due from the director. The judge found that the director was liable to pay that sum.

A further claim was advanced by the director in the sum of £75,000.00 for monies that the judge found were simply a misappropriation of company monies to meet the directors’ personal liability to a bank. The judge found that the director had a fiduciary duty to safeguard company assets. He did not do so, therefore he was required to make good the assets as if he was a trustee and repay the monies.

A further claim in the sum of just over £5,000.00 was found to be owed by the director as a debt.

On the facts and the law the director’s counterclaims for set off and other claims were rejected.

A small crumb of comfort was allowed by way of the director’s counterclaim for a month’s unpaid salary, 12 week’s salary by way of wrongful dismissal and a redundancy payment.

ANALYSIS

Oddly the judgment does not set out the pleaded legal basis of the Liquidators claims. However, it is likely that they were for Misfeasance pursuant to section 212 of the Insolvency Act 1986. This is a fairly typical claim that directors of a company can face it that company has been placed into Administration or Liquidation to make them personally liable.

The Court may explore the conduct of a director and may via a Misfeasance claim compel the director to repay, restore or account to the company for any property or money (plus interest), or contribute such sum to the company’s assets by way of compensation in respect of the breach of duty as the Court thinks fit.

If the company is insolvent or financially distressed, an additional duty is imposed on the director to consider or act in the interests of creditors of the company (section 172(3) of the Companies Act 2006). However, that duty is owed to the company.

This is in circumstances where, as in this case, the judge found that the Company had been insolvent over a long period of time and that means that the director(s) of the company then have a duty to consider the best interests of creditors as a whole. These interests are paramount.

COMMENT

Particularly when the company is or may be trading insolvently the paramount consideration for the well-advised director is to consider the best interests of creditors. That protective advice should be sought from an accountant, a Licensed Insolvency Practitioner or an insolvency Solicitor to forestall an application by a subsequently appointed Administrator or Liquidator for Misfeasance to make you personally liable.

WHAT TO DO NOW?

If you are faced with a claim for Misfeasance please talk to me today. That is in order to protect your position without delay. The earlier that you speak with me the more that I can help. Why not call me today on 01992 558 411 and speak to me without obligation, pressure or cost.

If you are happy to instruct me my firm and I are happy to talk to you about fixed fees or staged fees that are agreed with you in advance of any work being carried out or we can liaise with your insurers. Your work will be carried out by me or others under my close supervision. I am happy to come to you to take instructions. My firm is based in London and Hertfordshire, here in the UK.

Finally, is you advisor a practising solicitor (and thus insured to advise you – check with the SRA) and if so is your solicitor a full member of the Insolvency Lawyers Association (‘ILA’) (ask them). Membership of the ILA is a public mark from insolvency peers that your representative has the requisite knowledge, skill and experience to advise you. I am both. Accept no substitutes.

Until the next time…

THE DIRECTORS FRIEND

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Complex challenges for employers in the year ahead

Constant changes and increasing complexity have helped make employment law a frontline challenge for business and this year looks set to continue the trend. 

The first weeks of January saw Maggie Dewhurst, a bike courier with City Sprint, winning her case to be treated as a worker, rather than a self-employed contractor. The high-profile case follows hard on the heels of the similar ruling given late last year in the action brought by Uber drivers, which the company has said it will appeal.

A worker may be entitled to certain rights such as the national living wage, paid holiday and sick leave, where a contractor would not.  An employee may also be a ‘worker’, but with extra employment rights and responsibilities.

“The decision in the case of Maggie Dewhurst vs City Sprint will apply only to her personally, but it puts such working practices under the spotlight, especially in the so-called ‘gig economy’, where people are employed by companies on a job-by-job basis,” explained Brendan O’Brien head of Business Services and Managing Director at Breeze & Wyles Solicitors Limited.  “But the issues involved can equally apply in many other sectors where companies may be trying to optimise their staffing, if they do not realise the distinctions between an employee, a worker and a self-employed contractor. A number of cases are now working their way through the courts and I expect we’ll see this topic in the headlines throughout 2017.”

Alongside, the Government is moving to crack down on unscrupulous employers to stamp out exploitation in the workplace, after several companies hit the headlines for poor practices in recent months, including reports that workers at Sports Direct were receiving less than the national minimum wage and being subjected to humiliating working practices.  The new Labour Market Enforcement body will take the lead in this, headed by Prof Sir David Metcalf, a founder of the Low Pay Commission.

Together with other employment legislation already announced for introduction this year, bringing further significant changes and new requirements, businesses need to make sure they are up to date with their practices and terms of employment.  The up and coming legislation includes:

Gender pay gap reporting:   The Equality Act 2010 (Gender Pay Gap Information) Regulations are set to come into force on 6 April 2017 meaning all private sector organisations with at least 250 employees must publish details of their gender pay gap, for both basic pay and any bonus payments.  The first reporting will be due no later than 4 April 2018, and annually after that.  This could be a raw topic for supermarket employer Asda who recently lost an equal pay claim brought by women workers, who claimed their work was equal to male warehouse workers.  In the preliminary judgement, the women won their case but Asda are expected to appeal.

Apprentice levy:  Also due on 6 April is the annual apprenticeship levy, under the Finance Act 2016 (part 6).  In a Robin Hood style approach, the levy must be paid by all private and public sector employers in the UK with a pay bill of £3m and above. It will be charged at the rate of 0.5% on their total pay bill, with an annual allowance of £15,000.00 to offset against the levy payment. The income will be used to fund a new system of post-16 apprenticeships, which will be available to those employers falling below the £3m threshold.

Salary sacrifice schemes:  As announced in the Autumn Statement, the Finance Bill 2017 will set out changes to the tax status of salary sacrifice benefits with effect from April 2017.  The changes will see an end to the tax saving benefits of most salary sacrifice schemes, which will become subject to the same taxation as cash income. Any arrangements in place before 6 April 2017 will be protected for one year, or four years in the case of cars, accommodation or school fees.  The extension will apply until the arrangement ends, is renewed or otherwise modified.  Remaining exempt from tax will be pensions and related advice, cycle-to-work and ultra-low emission cars.

Tax-free childcare:  Also retaining its taxation benefits will be existing employer-supported childcare voucher schemes.  These can remain open to new entrants until April 2018 with childcare vouchers and all associated tax savings available for the life of the scheme.  However, the Government is expected to launch a new, alternative tax-free childcare scheme, which will allow working families satisfying a minimum/maximum income requirement to claim 20% of childcare costs for children under 12, or under 17 where children have a disability, capped at £2,000 per year.  The two schemes can run in tandem, but once a new scheme has been established no new employees will be allowed to join an old-style childcare voucher scheme and still receive the tax benefits.

Holiday pay:  An appeal by British Gas to the Supreme Court will challenge last year’s ruling by the Court of Appeal that holiday pay should be ‘normal pay’ and include contractual results-based commission. The appeal is expected to be heard in March 2017 but in the meantime the ruling stands and employers need to look at irregular payments made to employees and establish which are to be included within ‘normal’ pay and so be included in any calculation for holiday pay.

He added: “The complexity around holiday pay calculations means employers are likely to need advice to get it right.  It’s just one example of how employment law continues to pose challenges for business, and the year ahead is certainly no exception.  It’s important to get ahead of the deadlines and make sure you’re addressing the changes across all aspects of the business.

“And while European law is behind some of the upcoming legislation or court rulings, it cannot be ignored on the basis that we are starting the process of withdrawing from the European Union, whatever style of Brexit is adopted by the Government.  For now, everything stands.”

ENDS

Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues

https://www.gov.uk/employment-status

Regulation 2 (1) of the Working Time Regulations 1998

Dewhurst v City Sprint

Mr Y Aslam, Mr J Farrar and Others -V- Uber

Lock v British Gas

Brierley v Asda Stores Limited

The Equality Act 2010 (Gender Pay Gap Information) Regulations

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Getting rocky relationships through tinsel-time

The family-focus of Christmas is often followed in January with news of unhappy couples who decide to call it quits, leading to so-called Divorce Day, as family lawyers receive a surge of enquiries when they re-open after the break.

And as the holiday season goes into full swing, there are calls for greater support for couples, based on better understanding of outcomes.
According to the latest figures from the Office for National Statistics (ONS), the overall rates of divorce are continuing to fall.  There were 111,169 divorces in 2014, a decrease of 3.1% compared with 2013 and 27% lower than 2003.
Compared with data from 2004, divorce rates were lower for all age groups, except women aged 55 and over. As younger people look to be having fewer problems in the first decade of marriage, this has been attributed by ONS to higher numbers of couples cohabitating before marriage, with the suggestion that only the stronger relationships make it through to the wedding day.
But those working at the front-line say the apparent improvement should not obscure the increasing difficulty faced by couples looking to separate.  For although the process of securing a divorce is relatively straightforward, the associated negotiating over finances and children is proving an increasing challenge.
Faced by the cuts to legal aid and higher Court fees – the cost of applying for a divorce increased from £410 to £550 in March 2016 – through to the difficulty in affording to set up two homes, many couples are turning to increasingly desperate measures.
For some, it involves continuing to live together, even when officially separated, or even post-divorce, including so-called ‘bird nesting’ arrangements, where the children stay in the family home and the parents come and go.  Others turn to online help or seek an agreement without independent advice, only to discover later that they may have agreed financial or childcare outcomes that leave them at a significant disadvantage, when professional advice and representation could have reached a fairer outcome.
“Unfortunately the workload of the family lawyer is not reducing,” said family law expert Karen Johnson of Hertford-based solicitors Breeze and Wyles Solicitors Ltd.  “And dealing with problems arising from self-conducted negotiations, or where negotiations have been managed by an untrained intermediary, is becoming more common.
“DIY can seem a sensible option when you’re trying to keep the lid on costs and everyone is saying it’s simple. And whilst it’s true that the application process itself is relatively straightforward, that’s only one small part.  Nor is it fool-proof, and if you get it wrong it could lead to paperwork being sent back, which could mean additional court fees.”
She added: “It’s tough sorting things out between the two of you when emotions are running high, but talking things through is the best way and having someone help you with those conversations is a good idea.  They don’t have to be a professional, but you should have expert input at some stage in the negotiations, to make sure that what you have agreed is fair, that neither party is pushing the other into a corner, and that it is in line with what you could expect as a reasonable outcome if you had gone to court.”
Such encouragement for couples to talk reflects the findings of recent research in the United States.  This suggests that couples who share their problems with each other are more likely to overcome difficulties than those who share problems with their friends.  Reported in the Journal of Social and Personal Relationships, researchers found that sharing concerns with a friend increased the odds of a break-up by 33 per cent, but talking it out with a partner doubled the chances of them staying together.
She added: “Ending a marriage is one of the toughest things anyone will ever deal with, and what’s needed is a well-informed, collaborative approach.  The couple, and anyone supporting or advising them, need to be focused on achieving an outcome through positive negotiation that is more talk, less war.”

Web site content note:
This is not legal advice; it is intended to provide information of general interest about current legal issues.

Reference:

https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2014#statisticians-quote

 http://www.dailymail.co.uk/sciencetech/article-4010064/Relationship-troubles-Don-t-tell-mates-Confiding-female-friends-makes-likely-break-up.html#ixzz4SzsRxTa6

 

 

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