As an employer do I have to provide an employment contract?

Section 1 of the Employment Rights Act 1996 refers to an employee’s entitlement to a Statement of Initial Employment Particulars. Such a Statement shall be issued to the employee by no later than two months from their commencement date.

Employers must ensure that the particulars contained within the contract, given at a specified date, include:

• Pay
• Intervals
• Hours of work
• Holiday, sick pay and pensions
• Notice
• Job title and description 
• Period of employment
• Place of work
• Collective agreements

For full details please see The Employment Rights Act 1996.

In connection with the above, a Statement of Initial Employment Particulars should include applicable disciplinary rules and procedure.

The above only covers the basic rights employees have to a Statement of Employment Particulars. It is however good practice to include the above information into a Contract of Employment inserting additional clauses giving both the employer and the employee additional rights and obligations. 

Employers must remember that if there is not any form of written Contract in place, a contract still exists as soon as the employee agrees to work for the employer in return to pay for works performed.

Issuing a Contract of Employment is not however as simple as making sure the statutory entitlements are included, it is looking into the future to ensure that should the relationship break down, the clauses within the contract must be reasonable to enforce. If the employment contract includes specific restrictive covenants and confidentiality clauses that are completely unenforceable they will become dormant and you leave your Company open to risk that you could potentially forecast.

Another factor employers should consider is that failure to provide Statement of Initial Employment Particulars (after two months continuous service) can lead to an award of 2 – 4 weeks’ salary in the Employment Tribunal.

At Kidwells we offer a no obligation Health Check for businesses wherein which a specialist employment lawyer will review your contracts of employment, policies and procedure to ensure compliance with employment law and enforceability.

Kidwells can save you time and potentially costly mistakes by assessing how employment law changes affect your businesses and make recommendations for how to incorporate the developments into your policies and procedures. 

Should you require any additional information or wish to discuss the Health Check for your business please contact Rebecca Hardy on 01432 278179 or email rh@kidwellssolicitors.co.uk

Your guide to family money and property when you separate

Dividing assets

The main objective to be achieved when apportioning capital assets between parties should be one of fairness. The starting point is one of equal division and should only be departed from if there is good reason. This reasoning is enshrined in case law from a very prominent family law case White v White, HL (2000) 2 FLR 981

The court has reinforced the need to apply the criteria set out at S25(2) of the Matrimonial Causes Act 1973 (as amended).

Section 25(2) of the Matrimonial Causes Act 1973/Schedule 5 Civil Partnership Act 2004

This sets out how the court exercises its powers when considering the level of a financial order. The court shall in particular have regard to the following matters:

1. The income, earning capacity, property and other financial resources which each of the parties to the marriage or civil partnership has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage or civil partnership to take steps to acquire;
2. The financial needs, obligations and responsibilities which each of the parties to the marriage or civil partnership has or is likely to have in the foreseeable future;
3. The standard of living enjoyed by the family before the breakdown of the marriage or civil partnership;
4. The age of each party to the marriage and the duration of the marriage or civil partnership;
5. Any physical or mental disability of either of the parties to the marriage or civil partnership;
6. The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
7. The conduct of each of the parties, [whatever the nature of the conduct and whether it occurred during the marriage or civil partnership or after the separation of the parties or (as the case may be) dissolution or annulment of the marriage or civil partnership], if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

Maintenance

In marital or civil partnership proceedings there may be circumstances which entitle one party to claim an income from the other.

In all cases it must be considered whether or not all claims should be extinguished - this would result in an arrangement known as a "clean break". Nowadays many parties both work full time and income claims may not be appropriate. Sometimes it may be appropriate to provide one party with more of the available capital in place of maintenance to achieve a clean break or provide capitalised maintenance which would achieve the same result.

If a clean break is achieved then neither party will be entitled to raise any future claims against the others income.

Property

Most families will have a privately owned home, but what should happen to it? The needs of the children are the first consideration and maintaining a suitable home for the children of utmost importance.

The main options for you and the property are:

1. For the property to be sold and the net proceeds divided between parties (not necessarily on a 50/50 basis).
2. For the property to be transferred to one party (usually with the other being released from any mortgage) on the following basis:-

• Outright i.e. with no payment to the departing party.
• Lump sum i.e. with a cash payment or capital adjustment awarded to the departing party.
• Retained interest i.e with the departing party keeping a percentage interest or fixed amount of equity in the property which will be received in the future upon the sale of the property. The sale could be triggered by an event such as the youngest child attaining the age of 17 or finishing full time education.

For advice and information on asset division following separation contact Jo Thurlow at jt@kidwellssolicitors.co.uk or telephone 01432 278179.  

Inheritance and its effect on state benefits

When you make a Will you should consider the effect of any inheritance upon any Beneficiaries that you have or are currently or will be at the time on state benefits.

There is no legal way for any Beneficiaries to avoid receiving the money even if they then put that money in Trust for their children. The DWP would consider that to be a deprivation of capital and they would treat the Beneficiary as though they still had the money.

Means tested benefits i.e. income support, council tax and housing benefits have limits set for the amount that you can have in savings. If you exceed that limit then you will lose the benefits as somebody on means tested benefits. Above a certain limit of savings currently £16,000 benefits will stop completely.  Savings of £6,000 will not affect means tested benefits currently.

The deprivation of the capital rules also mean the Beneficiary would not be able to go out and blow the inheritance to break their level of savings below the required limits. A deprivation of asset finding would mean that you are breaking the rules and committing a fraud which could lead to a criminal conviction/record. Those making Wills should consider the affect of any inheritance of any one beneficiary. If that beneficiary is on state benefits then it may be prudent to consider putting money on Trust for the children of that Beneficiary which may be of more long term assistance to your family.

A good website to check your status regarding benefits is “www.turn2us.entitledto.co.uk”.

If you receive an inheritance and you are on state benefits then you must declare the inheritance or face problems in the future. It could be that your benefits are withdrawn and you receive a demand for repayment from the DWP.

It is an issue that is not always raised when you are making a Will and is not often discussed amongst families or considered by professionals who make Wills.

If you require further information please contact Fiona Davies on 01432 278 179 or fd@kidwellssolicitors.co.uk

2012.....an extra Bank Holiday?

  This year the Queen celebrates her Diamond Jubilee. The occasion will be marked by an extra long weekend as Tuesday 5^th June has been declared a Bank Holiday. The late May bank holiday will be moved to Monday 4^th June therefore creating an extra long weekend similar to the extra Bank Holiday last year for the Royal Wedding.

Although the additional Bank Holiday has been declared, employees must not presume that they have the right to the days annual leave as there is no automatic right. Employees are encouraged to check their contractual right under their Contract of Employment for clarification.

Your Contract of Employment at a minimum will allow for 28 days holiday (the statutory entitlement) it will be expressed whether this includes Bank Holidays. If your contract states “you are entitled to 28 days holiday in each holiday year” you have no contractual entitlement to take additional bank holidays. Where you Contract does not allow for additional Bank Holidays Employees will have to request the days annual leave using the normal process, of course Employers are entitled to refuse such a request.

Alternatively your Contract of Employment will allow for a set number of days annual leave together with all Bank and Public Holidays, if this is the case contractually you will be entitled to the additional day.

Please therefore do not presume that because there is an additional Bank Holiday in June 2012 that as an employee you have the right to an extra day off as this may not be the case. If you are unsure or your Contract is unclear you are advised to seek clarification from Management.

Employers be aware of the additional day, make it clear to employees the position within your Company by referring employees to their Contracts of Employment. Of course, Contracts may not allow for the additional day but Management may use their discretion to allow leave for the historic occasion.

Should you have any questions regarding entitlement to annual leave and the additional Public Holiday please do not hesitate to contact our Rebecca Hardy 01432 278 179 or rh@kidwellssolicitors.co.uk

Employment Tribunal Statistics 2010-2011

The 2010-11 figures for Employment Tribunals have been published and show an 8% fall in the number of claims received when compared with the previous year. Please see Employment Tribunals and EAT Statistics 2010-11

Of claims accepted by the Tribunal 47,000 were for unfair dismissal which was a drop of just under 10,000 from the year before. The level of sex discrimination claims remained almost the same at just over 18,000 as did disability claims at just over 7,000. Age discrimination claims showed a marked increase from 5,200 to 6,800.

For unfair dismissal cases 41% reached conciliated settlements through ACAS, 25% were withdrawn and 11% were struck out not at a hearing. Only 8% were successful at a Tribunal Hearing while 10% were unsuccessful.  For successful claims the average award was £8,924.

For age discrimination cases 35% were settled via ACAS while 40% were withdrawn. Only 2% were successful at Tribunal. 9% were unsuccessful. The average award for age discrimination though was £30,289.

The figures accord with the proposals put forward by Vince Cable, business secretary in his speech to the Engineering Employers Federation of November 23rd as they show that a significant number of claims are withdrawn.  Mr Cable said in his speech that the introduction of fees will encourage users to “think long and hard about the validity of the claim. Too many people have unrealistic expectations about the scale of award they may receive, and perhaps don’t think carefully about the type of claim they should bring.”

It is also clear from the Tribunal figures that many claims settle. Because of the way in which cases settle it is not apparent from the figures whether settlement is reached because the claimant has a genuine case and that rather than face the financial and time costs of defending a claim they are likely to lose the respondent settles it. The other alternative is that in order to avoid the same costs the respondent may choose to settle on a ‘commercial basis’. The average claim according to Mr Cable costs £4,000 and takes 24 weeks.

ACAS already plays a significant role in the settlement process as is again evident from the figures. The employment reform proposals address this by intending to bring in a requirement for claims to be submitted first to ACAS to see if the matter can be resolved through conciliation rather than through the tribunal.

These are of course not the only changes proposed in the reforms. Perhaps of most concern to employees will be the increase to the qualifying period for bringing a claim for unfair dismissal from 1 to 2 years. The changes that have been proposed are widely supported by the statistics from the Employment Tribunals but may give rise to unintended consequences as aggrieved employees draw on discrimination legislation to bring claims which do not require a qualifying period. 

Time will tell if the proposed changes will have the expected outcome or whether they will give rise to the unintended consequences that dogged the Statutory Dispute Resolution Procedures in the Employment Act 2002 leading to them being abolished in 2009 after a short period of time.

If you have any questions on the issues raised in this article or about employment law generally please contact Sarah Everton at se@kidwellssolicitors.co.uk.