We deal with...

We deal with many areas of the Law, including house purchases and sales, new builds, shared ownership, leasehold enfranchisement, business law, intellectual property, partnership deeds, contract and other disputes, party wall matters, boundary disputes, construction matters, divorce, access to children, change of name, personal injury, medical negligence, employment law, wills, lasting and general powers of attorney, probate and trusts.

Locations

The firm is based in Woodford Green in Essex, and in Walthamstow in North East London but also serves business and personal clients in many parts of the country.

1.   Family - Financial Issues

Divorce

You may want to discuss resolving the financial issues directly with your husband or wife. We can give you expert advice and guidance at an early stage on how best to approach the issues and how to deal with any sticking points that may arise during your discussions. Once any problem areas have been identified, we will work with you to find a solution. 

We can help you negotiate an agreement with your husband or wife and, if this is not possible, then we can make an application to the court for a decision. 

Our aim is to assist you in obtaining finality and certainty concerning the financial aspects of your divorce.

Financial Disclosure
Even if you reach agreement with your husband or wife directly on the terms of settlement, you should be aware that a court will not approve your agreement and make a final binding order in the absence of financial information being provided by you both. Our approach centres on facilitating an early voluntary exchange of financial information (often referred to as financial disclosure).

If a voluntary exchange is not forthcoming, a formal application may be made to the court for a timetable to be set down for when that information must be produced.

Financial disclosure needs to be made so that we can advise you properly on a range of settlement figures, and so that you can then be confident about making or considering settlement proposals. Both you and your husband or wife have a duty to tell each other everything about your financial positions. If either of you withhold or give incorrect information, you run the risk that any agreement or court order can be unravelled by your husband or wife. 

In our experience delayed or incomplete disclosure is an obstacle to successful negotiations and ultimately is likely to cause your legal costs to escalate.

When it comes to financial disclosure, short cuts don't work in the long run.

Behaviour
Behaviour during the marriage will not affect how the court divides the assets unless the court feels it would be unfair to ignore it — for example if your husband or wife has gambled away a large proportion of the family assets.

Factors in the Court's Decision
Rather than being restricted to applying a rigid formula, the court has a very wide discretion when it comes to determining property and maintenance issues. When considering possible outcomes, we will have in mind the same factors to which the court will have regard if asked to decide how the assets should be divided.

These factors include earnings and earning capacities, savings, expenditure (both now and in the future), standard of living, ages, length of the marriage, any physical or mental disability, contributions made for the welfare of the family, and any benefits that may be lost by virtue of the divorce, e.g. loss of pension benefits. 

Children
Where you have young children, then their welfare will be the court's first consideration. In practice this means that the court will not order a sale of a property and a division of the proceeds between husband and wife if the sale would mean that the children would be left homeless. 

Our Approach
We take a proactive direct and positive approach to working with you to resolve any financial issues with your husband or wife. 

Our aim is to give you a range of figures within which a court's decision may fall and to negotiate a settlement with your husband or wife wherever that is possible.

 

2.   Family - Relationship Breakdown and Divorce

When you first seek legal advice on the breakdown of your marriage, you may be unsure whether or not your marriage has reached the end of the road.


At this early stage you may just want initial advice on formalising any separation and to have an idea of the process that would be involved to bring your marriage formally to an end. 

You are also likely to be concerned about your financial situation and about arrangements for your children, and want an indication of how any issues between you and your husband or wife may be resolved.

Separation or Judicial Separation 
Reasons for not considering divorce proceedings to end your marriage straight away could include having religious or moral objections to divorce, or not being sure that the difficulties in your marriage are irresolvable and wanting some time to think things through. 

Your separation may be informal by either you or your husband or wife moving out of the family home; or formal by detailing any terms agreed on separation in a legal document (referred to as a separation agreement or a deed of separation); or official by applying to the court for a judicial separation.

Separation Agreement
Details of any arrangements agreed about financial matters or the children can be set out in this agreement. It can also confirm your intentions concerning divorce proceedings in the future, and whether there should be any further financial provision made at that time. 

A separation agreement provides a degree of certainty without taking the steps necessary to bring the marriage formally to an end by divorce. However, you should be aware that only a court in divorce proceedings has the power to make an order that is final and binding — there is therefore a risk that the terms of the separation agreement may be reviewed and changed by a court in later divorce proceedings.

Judicial Separation
A judicial separation does not bring your marriage to an end but it does enable the court to make orders about financial matters, save for orders about pensions. You may want to consider judicial separation as an alternative to divorce proceedings where you have not yet been married a year (see below), or if you do not want a divorce for religious or other reasons. You still have to show one of the same reasons (facts) as for a divorce, but you do not have to show that your marriage has irretrievably broken down.

Divorce
No application for a divorce may be made unless you have been married for at least a year. Additionally you or your husband or wife must satisfy residence and domicile requirements before any application may be made. 

Ground for Divorce (irretrievable breakdown of marriage)
The law requires you to show one of five reasons (facts) showing that your marriage has irretrievably broken down:

 

3.   Family - Children - Private Law

Children and Divorce
When relationships break down, usually both parents are concerned to do their best for the children and ensure that they do not suffer unduly.

When seeking a divorce, it is advisable for both parents to agree what they are going to do about caring for the children, particularly with regard to which parent the children will live with and how often they will see the other parent.

Parental Agreement
When the divorce petition is filed at the court, it will have to be accompanied by another document giving detailed information about the proposed arrangements for the future care of the children. (statement of arrangement for children) The other parent will then be asked whether he or she agrees with these arrangements.

If the parents agree, then the court will usually not interfere (unless the arrangements are seen to be detrimental to the children). In this way, there does not need to be any court order and each party's parental responsibility is not affected by the divorce.

Parental Responsibility
Parental responsibility gives a parent input into their child's health, education, general welfare, religion etc. 
One parent cannot change a child's surname without the other parent consent or an order of the court. The child cannot be removed from the jurisdiction of England and Wales for a period in excess of one month without the other parents consent or permission from the court.

Parental responsibility is not synonymous with being a parent. Some parents may not have parental responsibility, e.g. unmarried fathers (see below). Also some people who are not the parents of the child can apply to the court for a residence order (also see below) which confers parental responsibility, e.g. a grandparent with whom a child has lived for a number of years.

If the parents of a child are married, then both the mother and the father automatically have parental responsibility. If they subsequently divorce, this does not change the situation — parental responsibility is not taken away from either parent (unless the child is adopted by someone else).

Court Orders
If the parents cannot agree about the future care of the children, the court may upon an application from one of the parent will consider the issue and make the appropiate order for the benefit of that child.

When making rulings, the court has an overwhelming concern to do what is best for the child. In doing so, it may take the child's own wishes into account — particularly with older children and teenagers. It must also have regard to other factors specified by the law.

What it will not take into account are such questions as the payment (or non-payment) of maintenance, and any questions of "blame" in the divorce proceedings (unless these can be shown to be directly relevant to any dispute concerning the children).

There are four kinds of order (known as Section 8 orders) that the court can make:

Residence Order
This decides where the child will live.

Contact Order
This relates to the child's right to contact with a parent (not vice versa) and spells out when and how often the child will see the non-resident parent. This can include overnight staying contact. It can also rule about contact by telephone or letter.

Prohibited Steps Order
This prevents a specific action being taken in relation to the child, such as taking the child abroad.

Specific Issue Order
This makes a ruling about a specific issue regarding the child, such as which school the child should attend.

Non-parent relatives can also apply for Section 8 orders relating to the child, for instance a grandparent can apply for contact. People unrelated to the child may also apply, subject to some requirements.

Children can make applications on their own behalf. Although usually they will be represented via a parent, it is possible for a child to have his or her own solicitor so that their own voice can be represented either during the divorce proceedings or in any specific issue. Solicitors on the Law Society's Children Panel are permitted to represent children directly.

If married parents are separating but not divorcing, then they are not forced to give the court details of any agreement they have made in relation to the children. They may make an informal private agreement. Alternatively, they may have a formal agreement regarding the children — possibly as part of a separation agreement, after both having taken advice from solicitors.

If the parents fail to agree, or if either parent becomes concerned about any aspect of the child's care, an application can be made to the court for one of the above Section 8 orders.

Unmarried Parents
As from 1st December 2003, the rule is that both parents acquire parental responsibility if the father's name is registered on the child's birth certificate. If this is not done, only the mother has parental responsibility.

If unmarried parents separate, then, just like separating married parents, they may make their own arrangements for their children without recourse to the court. However, if the father does not have parental responsibility, only the mother can make decisions regarding such matters as residence and contact. There are, however, various legal ways in which a father in this position may acquire parental responsibility, either by an application to the court or by consent with the other parent with both signing a parental responsibility agreement. 

If the parents cannot agree regarding their children, either of them can apply for a Section 8 order.

Children's Names
Anyone with sole parental responsibility can change a child's name. If parental responsibility is shared and one parent objects to the change, a Prohibited Steps Order may be applied for. For instance, if a divorced woman re-marries and wants to change a child's surname to that of her new husband, the child's father can apply to the court for a Prohibited Steps Order to prevent her doing so. However, the order will not automatically be granted — as with other matters relating to children, the deciding factor will be whether it is best for the child, not the wishes of the parents.

If there is an existing Residence Order, however, the child's surname cannot be changed without the consent of either the other parent or the court.

Contact Eve Dunne if you would like 
advice on any aspect of the Civil Partnerships Legislation

4.   Wills and probate - Why Make a will?

It is a well known fact that a very large percentage of people have not made Wills — and that of those who have, many will be out of date for one reason or another. If you do not have a Will, or if your circumstances have changed since you last made one, maybe now is the time to think about it. 

Many people think that making a Will is difficult, but in fact normally it is quite straight-forward and relatively inexpensive. Making a Will could even save you — or rather your beneficiaries — money in the long run, by helping to reduce any Inheritance Tax payable (although this will depend on individual circumstances). 

The main reason for making a Will, however, is to spell out clearly who you wish to benefit from your estate when you die. Although this may sound obvious, if you were to die without making a Will then the law sets out who gets your estate and it is quite likely that this will not accord with your own wishes. In an extreme case, if there was no family, everything could even go to the Government.

Unmarried couples are particularly vulnerable if they do not make Wills because there is currently no automatic right for them to inherit anything from each other.

If you have young children you could appoint a guardian for them to ensure that they are looked after. Other particular occasions when you should consider making a Will or changing your Will are if you marry — in which case any Will previously made will automatically be revoked — or if you have been divorced since last making your Will.

Inheritance Tax Issues
Something people also need to be aware of is whether Inheritance Tax will have to be paid on their death. As a result of increasing house prices in recent years, many people who thought Inheritance Tax was not an issue for them should reconsider. In general terms Inheritance Tax is charged at 40% on everything above £325000.00 currently. 

Making a Will can sometimes help save some of the tax that may be payable, although this will very much depend on individual circumstances. Certain gifts — such as those to your spouse or to charity — are exempt from Inheritance Tax, and so the tax bill could be reduced in this way.

Unfortunately it cannot be guaranteed that any arrangements you put in hand now will still remain tax-efficient at the time of your death, because the Government does change the law, or its interpretation, from time to time. It is therefore important that, once you have made a Will, you regularly keep it under review. 

So don't delay — call today and make your Will. Either of our offices will be pleased to help.

5.   General - Ages of consent

What is the age of consent?

This really begs the question — Consent to what?

The following is a — far from exhaustive — list of what you can do when you reach various milestones.

Age 5: 
Drink alcohol at home 

Age 10: 
Be convicted of a crime
Open a current bank account 

Age 12: 
Buy a pet 

Age 13: 
Be employed (limited hours and occupations) 

Age 14: 
Own an air gun 

Age 15: 
Own a shot gun 

Age 16: 
Leave school
Marry with consent
Buy fireworks

Age 17: 
Drive a car
Fly a plane 

Age 18: 
Marry without consent
Vote
Buy a house
Serve on a jury
Be tattooed
Make a Will 

Age 21: 
Stand for Parliament
Drive a bus


6.   General - School Leaving Age

When is the earliest you can legally leave school? The answer varies, depending on where you live:

England and Wales
The last Friday in June of the school year in which your 16th birthday occurs.

Northern Ireland 
30th June of the school year in which your 16th birthday occurs.

Scotland 
31st May of that year if your 16th birthday is between 1st March and 30th September or the start of the Christmas holiday if your 16th birthday is between 1st October and the last day of February.


7.   Company and Commercial - Landlord & Tenant Act Reform

The reforms to the Landlord and Tenant Act 1954, Part II came into force in June 2004.

Here is a whistle-stop tour of the principal changes:

New Leases
Previously, only the tenant could apply to the court for a new lease. Under the new regime, the landlord is also able to apply to the court for renewal. Once one party has applied for renewal, the other will not be able to do so. The tenant will be unable to apply for renewal if the landlord has already applied for termination under the new provisions (for which see below). This is to prevent delay on the part of the tenant.

The Tenant's Counter-Notice
This is abolished.

The Section 25 Notice
This now has to set out the landlord's proposals for the new tenancy. The new Section 25 Notice will contain a "health warning" explaining that the landlord's proposals are merely an opening bid in the negotiations and do not bind either party.

The Date For Proceedings
The tenant no longer has to issue proceedings for renewal in the current two months - four months period. It can now do so by the date specified in the S25 Notice, or by the expiration of any extended time agreed between the parties. Any proceedings must be issued by the S25 date or the extended date; otherwise, the tenant will lose its rights. Any extension must be agreed before the expiration of the date in the S25 Notice or before the expiration of any extension already agreed.

The Contested Renewal
The changes do not affect the operation of Section 30 (1), but they enable a landlord to get into court a lot quicker than previously. The landlord can now issue termination proceedings after service of the S25 Notice, and is not bound to wait for the renewal proceedings. A new deadline is that specified in the landlord's Section 25 Notice or the day immediately before the date specified in the tenant's Request. Where the tenant has made a Request for a new tenancy, it may not apply for a new tenancy until the landlord has either served a counter-notice or has had a two-month opportunity in which to do so.

The Corporate Veil Is Lifted
There has been decided authority, which provides that if, for example, an individual is the lessee but their limited company occupies the premises for the purpose of a business, the individual has no right to renew. The amendments extend the qualification for renewal to wider categories of tenants. 

An individual tenant would satisfy the criteria for renewal if a company under his or her control occupies the premises or carries on a business there. Similarly, a company would satisfy the criteria if the controlling shareholder occupies the premises or carries on a business there. 

Following on from that, Section 30 (1) (g) of the Act currently enables the landlord to oppose the renewal of the lease if it wishes to occupy the premises for its own residence or business. The amendments provide that businesses under the same ownership and control as the one qualifying under the Act should be able to operate the statutory procedures even though there may be different legal entities. Moreover, the amendments will extend the current five year rule under S30 (1) (g) to this wider category of landlords. Therefore, it may no longer be possible for an acquiring party simply to buy the shares in the landlord company to defeat the five year bar. 

Interim Rent
Until now, the Act has precluded a tenant from applying for an interim rent. The new arrangement allows the tenant, as well as the landlord, to apply for interim rent. To avoid duplicate proceedings, a party may not apply if the other has already applied and not withdrawn the application. The court will be able to consider an application for interim rent, even if either party has withdrawn its application to renew or terminate the lease.

Parties will not be able to apply for an interim rent once the new tenancy has run for more than six months after the end of the old tenancy. The rent will be payable from the earliest date for termination of the tenancy which could have been specified in a landlord's Section 25 Notice or the tenant's Request, irrespective of which party applies for the renewal or interim rent. 

A new method of establishing interim rent will apply where a new tenancy is granted and three conditions are satisfied:


a landlord's Notice or tenant's Request applies to the whole of the property let under the current lease


the tenant occupies the whole of the property; and


the landlord does not oppose the grant of a new tenancy


Most importantly, where the new method of establishing interim rent applies, interim rent will usually be the same as the rent for the new tenancy. However, the courts will vary this amount if either party is able to establish that:




Rental market conditions have changed significantly since the date when interim rent became payable, and/or


The occupational terms (for example, repairing or insurance obligations) for the new lease have changed significantly from those in the old lease


Where rental market conditions alone have changed, the court will base the interim rent on the occupational terms of the new tenancy, but the rent will be valued according to open market conditions applying on the date from which the interim rent became payable. Where occupational terms alone have changed, or both rental market conditions and occupational conditions have changed, the court will use its discretion to fix an interim rent which is reasonable for both parties. In all other cases where the above conditions do not apply, the existing method of determining interim rent will continue as before. 

Compensation
There are changes to compensation where the landlord opposes renewal on one of the mandatory grounds. Where parts of the premises have been occupied for different lengths of time, compensation will be calculated for each part separately. Higher rate compensation will apply only to those parts that have been continuously occupied for 14 years or more. The amendments to the Act do, however, extend the availability of compensation to cases where the tenant quits the premises after failing to apply for renewal, or withdrawing an application, as a result of a misrepresentation or concealment of material facts by the landlord. Up to now a tenant might be unable to claim compensation where he or she has failed to apply for a new tenancy or withdrawn an application as the result of action by the landlord. This is now rectified by enabling the tenant to recover compensation for misrepresentation even where it does not make an application to the court for renewal. 

Exclusion Orders
Under the new regime, the need to apply to the court for an exclusion order or to sanction an agreement for surrender is abolished. In its place, the landlord has to give a "health warning" in a prescribed form to the tenant not less than 14 days before the date that the lease is to be granted. If the parties want to complete the lease earlier than the 14 day period, the tenant must enter into a Statutory Declaration, to be made before a solicitor, in the terms of a statutory instrument that is being brought into effect. Broadly, the same provisions relate to an agreement to surrender.

Statutory Information
Under Section 40, a landlord is supposed to give information to the tenant and vice versa if an appropriate Notice is served. The single most important aspect of the amendment to S40 of the Act is that this must be updated in the event of any relevant change or corrected in the six months following the date that the Notice is served. The court can now order damages for breach of statutory duty and/or compliance with the Notice 

Tenant's Determination Under Section 27
Under Section 27 (2) of the Act, at present a tenant can bring its tenancy to an end by a Notice of not less than three months but which must expire on the next quarter day after that three month period. This is now abolished. The tenant need only give Notice of three months duration ending any time. In accordance with decided authority (Pearl-v-Esselte), if a tenant is not in occupation of the premises for the purposes of a business at the date that the lease comes to an end by effluxion of time, its rights to renew are lost.

It is still open to the tenant to give a Notice under what was Section 27 (1) but, to some extent, this is superfluous if the premises are not being used for business purposes on the contractual determination date. What the Section 27 (1) Notice does, it seems to me, is give an advance warning to the landlord that come the end of the term the tenancy will not be continuing. 

Term of Lease on Renewal
The new maximum term that the court can award for a new lease is 15 years, as it fits better with modern practices of three- and five-yearly rent review spreads.

Split Reversions
One of the other anomalies of the Act (and there have been many which have been the subject of judicial decision) is where the reversion is split, i.e. there are two or more competent landlords. The Act makes clear that where different landlords own parts of the property let, "the landlord" for the purpose of the Act will be all of the owners collectively. This means that landlords of a split reversion need to take concerted action, but with separate Notices relating to the individual parts of the premises. Similarly, a tenant would need to serve separate Notices on all the landlords, either taking proceedings against all of them separately or naming them all as parties in a single set of proceedings. I am bound to say that, whilst this reform may seek to assist practitioners and tenants, there may well be problems in a situation where one of three reversionary landlords wishes to redevelop, another wishes to occupy for the purpose of its own business or residence, and the third does not wish to oppose at all. This is the reason why the landlords must act in concert, but if a demise, for example, physically straddles different estates where the landlords have different objectives, it seems to me there is still trouble ahead.

Many of these amendments are long overdue. However, if the course of the '54 Act amendments run anything like the original statute, there may still be trouble ahead


8.   Company & Commercial - New Licensing Law

All existing licences will need to be converted — which means that if you currently hold a licence you will need to re-apply for a new licence.

Some of the Major Changes:

Licences are to be granted by the local authority (instead of Magistrates Courts)


A single licensing scheme covers premises selling alcohol or providing entertainment


There is a new system of personal licences — enabling holders to move freely between licensed premises


Licences are Required for:

Pubs


Off licences


Nightclubs


Restaurants that serve alcohol


Hotels and guest houses that serve alcohol


Indoor sporting events


Theatres


Cinemas


How We Can Help
Licensing applications are regularly won or lost by the way they are prepared. We can help by making thorough checks to ensure that everything has been done to make each application a successful one.

Sometimes local residents or authorities will object to applications. If this happens, we can advise on how best to deal with those objections.

We have a good local knowledge and are happy to advise clients at the earliest stage of an application. For instance, what structural alterations should be made to premises or whether to apply for a provisional statement (the new mechanism which replaces provisional licences).

Our team aims to be successful and takes a commercial approach to all applications. We will advise at the outset on the likelihood of success with the application and of the cost.

9.   Company & Commercial - Patent and Trade Marks

Patents are for inventions — functional products, or the machinery or chemical processes to make them


Registered designs are for manufactured objects with aesthetic qualities


Registered trade marks are the promotional signs or names under which goods are marketed


Copyright exists in original works, either written (books, newspaper articles, letters, computer programs) or visual (pictures, films) or sound (tapes, broadcasts, CDs) or a combination (websites), but not just in unrecorded ideas


The main difference between the first three and the last is that you have to apply for and obtain patents, registered designs and trade marks — whereas copyright intrinsically exists in any original work once it becomes public.

Patents
In order to obtain a patent you must meet three criteria:


it must be new


it must be useful


it must be inventive



New means that not only must no one have thought of it before you, but also it must not be public knowledge. This means you must apply for your patent before you try to sell your products, or even disclose details to others except under strict obligations of secrecy.

Useful merely means that your invention must have an industrial application — you can't get a patent for an object that has no function no matter how beautiful it may be — although in that case you may be able to register the design, or it might possibly be protected by copyright.

Inventive means that it must not be an obvious progression from another object or process.

Registered Designs
These are for objects with artistic merit, as opposed to being purely functional. "Objects" usually means three-dimensional objects (where the design lies in the shape of the object) but can include two-dimensional objects such as textiles (where the design may be the pattern or texture). Like patents, the design must be new to qualify for registration.

The distinction between a registered design and a work of art is that the design must be of something mass-produced, rather than a one-off object or picture.

Registered Trade Marks
These are the "signs" under which you sell your inventions or designs or anything else. They are often words, but can also be symbols or signs (e.g. logos) or, indeed, sounds or smells.

The main criterion for obtaining a registered trade mark is that it is distinctive — it must operate to distinguish your goods or services from those of others, and not be able to be confused with existing marks or common language.

Once registered, all of the three above give absolute monopoly rights, for a specified period only (except in the case of trade marks where there is no time limit). This means no one else can use or sell your invented or designed object even if they did not directly copy you but thought of it themselves. Thus you can prevent anyone marketing your product, or using your trade mark (or even a very similar one) to help sell their products. Furthermore, you will be entitled to claim either damages or the profits gained by the infringement.

Copyright
Copyright is different in that you do not have to apply to anyone to achieve it — it automatically attaches to any original work to which it applies, and lasts for a maximum of the life of the maker plus 70 years.

However, because of the lack of registration, making claims for breach of copyright is complicated by the fact that you have to prove not only that you produced the particular work first but that the infringer had knowledge of and copied, used or adapted your idea in some way, and that they did not independently think of it themselves.

Unregistered Designs and Trade Marks
Something like the principle of copyright also exists for designs and trade marks in that, even if you do not register them, you may still have rights to exclusive use and be able to prevent copying or unfair business competition.

This whole area of law is extremely complicated and will vary with individual circumstances.

If you believe your intellectual property rights may have been infringed and would like advice on making a claim, contact Nigel Smith.

10.   Residential Property - Tenure

Freehold
This is the simplest and most straightforward form of tenure. It means that you have outright and complete ownership of a house and the land it stands on.

Freehold ownership is usually for houses. Although it is possible to have a freehold flat, by their nature flats sit one on top of the other on the same piece of land — so only one of them can be freehold. For this reason, most flats are either leasehold (see below) or the new commonhold (see below).

Being the freehold owner of a house does not, however, mean that you can do absolutely anything you wish with it. When the house was first built, the builder or original owner of the land may have stipulated certain restrictions to apply to the house for all time — these are restrictive covenants. They might, for instance, stipulate that boundary fences or walls must be maintained, or that the outward appearance of the property should not be radically altered, and they very frequently state that it can only be used as a single dwellinghouse — thus preventing conversion into flats or creating a shop in your front room.

A unique difficulty arises when restrictive covenants have been lost. Their existence may be mentioned in the deeds but there may be no copy of the wording. Thus you know there are things you cannot do, but don't know what! You can't simply ignore their existence because you cannot guarantee that someone with a right to complain might not one day find a copy of the restrictive covenants and object to the way you are using the property. It is possible to insure against such consequences, so you might find that the cost of the insurance policy is worth the peace of mind it brings.

Leasehold
In a sense this could be said to be not ownership at all because what it gives is only the exclusive use of the flat for a specified time and no ownership of the land. At the end of the term of the lease, the flat will have to be handed back to the owner of the land (the freeholder).

However, in practice, if the lease is long enough, leasehold tenure is to all intents and purposes ownership. If you have a lease of 999 years, at the end of that time neither you nor, indeed, the building will still be in existence so it hardly matters to anyone what happens when the lease expires.

But an important distinction does need to be made between a "long" lease and a "short" lease. A short lease, of say 10 years, is not much different from a rental agreement.

A long lease — defined as more than 21 years — confers many more benefits than simply the length of time. Most flats with a long lease can be sold or sub-let, although this may be subject to conditions. If you have a long lease you are entitled to the automatic (although not free) grant of a 90-year extension to the lease. Furthermore, the owners of all the flats in a block are together entitled to jointly buy the freehold — even if the owner of the land does not want to sell.

A "long lease" in this context refers to how long it was when it was first created.

However, the length of time left to run on a lease is not irrelevant — especially if you are planning to buy a flat — because it has a direct bearing on the sale price. Briefly, the shorter the time left on the lease, the lower will be the value of the flat. Flats begin to lose their value when they have around 70 years left to run. However, this is subject to market conditions and some buyers are now nervous of a term under 80 years. 

If you do buy a flat with only a short time left on the lease you will, of course, be the owner and thus entitled to obtain a 90-year extension — but you will have to pay for it. How much you will have to pay may depend on a number of circumstances, so you should find this out before you commit yourself to the purchase.

Commonhold
This is a new method of ownership that came into existence in September 2004.

It is, in fact, a form of freehold for property where there are two or more units that may be owned by different people plus common areas, for instance a block of flats that has shared hallways and stairs. The units (flats) are individually owned but the common parts are owned by a commonhold association (a limited company) whose members must also be unit owners.

Commonhold differs from leasehold in two important respects:


Ownership of the units does not have a fixed term (as a lease would) — it is in perpetuity


Anyone who is not an owner of a unit cannot have an interest in the land or common parts — thus there is no landlord


Blocks of residential flats can be commonhold, so can commercial developments, or mixed developments. What matters is that there are units and common areas in the development.

Commonhold is designed to be a better way of owning property than leasehold, but leaseholds are by no means a thing of the past. Although in certain circumstances and with the agreement of all leaseholders, existing leasehold premises could be converted to commonhold, there is nothing that says this has to be done. It is therefore likely that both methods of ownership will continue in existence for many years to come. 



Joint Ownership
If you are not the sole owner of a house or flat, then both (or all) owners need to decide between themselves on what terms they will share ownership.

This can be done in two ways:

Joint Tenancy
The property is held in equal shares and on the death of one of two joint owners the other becomes absolutely entitled to the whole of the property. The survivor can sell or otherwise deal with the property as sole owner.

This form of ownership is favoured in many family relationships, e.g. between husband and wife.

Tenancy in Common
In this form of ownership, the shares do not need to be equal. If one owner dies, his or her share can be willed to whoever he or she wishes, or it will pass to the entitled relative if there is no Will — it does not automatically pass to the other joint owner(s). The surviving joint owner(s) may not be able to sell the property without permission, and if the property is sold will not receive the whole of the proceeds of sale.

This form of ownership is favoured where the parties are not married, or where the purchase money has not been supplied in equal shares.

Note that it is possible for one joint owner to convert the ownership from joint tenancy to tenancy in common. However, both owners must consent to a change from tenancy in common to joint tenancy.

11.   Residential Property - Contract Races

 If you are anxious for a quick sale of your house and have several interested buyers, you might think it would be a good idea to issue a contract to them all and sell to the first person ready to complete. This is called a "contract race" and in fact you are not allowed to do it unless you tell each buyer what you have done — your Solicitor has a duty to inform everyone concerned if he is asked by his client to issue more than one contract.


Contract races will often cause buyers to withdraw their offers because they are reluctant to risk wasting surveyors and solicitors fees — so from a position of several potential buyers, you could end up with none.

So, could you get around the rules by using a different solicitor for each contract? Unfortunately not — a Solicitor has to inform other parties if he knows a second contract has been issued, even if he did not do it himself.


12.   Residential Property - Moving Out

Moving Out
Arrange for meters to be read on the final day and bills sent to you.

Moving In
You will need to complete new forms of agreement prior to the move, otherwise you may find the services cut off. Do this as soon as you know your moving date. You may need to make special arrangements for the connection of the cooker.

It is usually possible to take over a phone if arrangements are made in time. You can sometimes keep your old number.

Council Tax and Water Charges
Notify the Local Council and Water Company as soon as you know your moving date, so your accounts can be adjusted. Any standing orders or direct debits for these charges on the old property should be cancelled — the Council and Water Company will send you accounts made up to the moving dates. You must notify the Local Council and Water Company for the new property that you are moving in.

Keys
Make sure you hand over all keys to the old property. Collect keys for the new property — however, you might like to consider changing the locks after you move in.

Electricity Fuse Boxes etc
In the new property, make a point of finding out where things like electricity fuses, main gas controls and mains water tap are situated, so that you will know where to find them in an emergency.

New Houses
If you are moving into a newly-built house and there is a National House Builders Council insurance policy in force, keep a close watch for any defects that develop and notify the insurers as soon as possible — there are time limits involved.



Checklist
For your convenience there follows a Checklist of things you need to remember:


Book removal van


Arrange re-direction of mail


Cancel standing orders/direct debits for:



Mortgage



Council tax



Water charges



Telephone



Gas



Electricity


Notify Change of Address to:



Friends and relatives



Employer



Doctor



Dentist



Optician



Inspector of Taxes



Banks



Building Societies



Post Office accounts



National Savings/Premium Bonds



Credit card companies



Mail order companies



Life insurance companies



Contents/Personal insurance companies



Pension insurance companies



Hire purchase companies



Car licence authority



TV licence authority



Schools



Stock broker



Registrar of any company in which shares or unit trusts are held



Clubs (sports, social, book, video etc)



Professional associations



Motoring associations


On the old house

Arrange final meter reading for:



Electricity



Gas



Telephone


Request accounts for:



Council tax



Water charges


Cancel:



Fire insurance



Contents insurance



Milk deliveries



Newspaper deliveries



Other deliveries


On the new house 

Arrange connection for:



Electricity



Gas



Telephone


Request accounts for:



Council tax



Water charges


Arrange:



Fire insurance



Contents insurance



Milk deliveries



Newspaper deliveries



Other deliveries

13.   Residential Property - New property

If you are buying a new property from a builder or developer, there are special points to bear in mind. These may not apply in all cases and we will be happy to advise in specific circumstances.


Roads and Sewers
These are normally built with the development as a whole. In the case of an estate, there will probably be an agreement between the builder and the local authority. All paperwork will need to be checked carefully and you should be sure you understand all its terms. In some cases, if the builder becomes insolvent before the roads are adopted by the local authority, the new owners of the properties may become liable for the upkeep of the roads.

Planning Permission
All new properties have to be built in accordance with the terms of Planning Permission and a Building Regulations Consent. You should satisfy yourself that the builder has not deviated from these requirements.

Specification
In many cases a builder will market a property when it is only partly constructed. In these circumstances you should be sure you understand the specification of the house when it is finished — including details of the fixtures and fittings. Some items may be regarded as extras for which there is an additional charge. If the price includes carpets or furnishings you should ensure it is made clear whether you have a choice and what your options are. Everything should be clearly recorded in writing so that you know exactly what you will get and what it will cost.

Gardens, Fencing, Paths
These may not be completed until after you buy the house. You should carefully check what kind of fencing and/or landscaping will be carried out as part of the price.

The exact dimensions of the plot may be varied according to the requirements of fencing.

Landscaping
Sometimes the Local Authority will require the builder to carry out landscaping works after the completion of the estate, e.g. planting trees or shrubs.

The builder may reserve the right to come onto your property for this purpose.

If your property is affected by the planting scheme, you may be required to maintain the trees or shrubs, or even replace them if they die within a period of perhaps five years.

NHBC/Foundation 15 Insurance
New properties are normally covered by a National House Building Council 10-year insurance policy or a Municipal Foundation 15-year insurance policy. These will cover the property against major structural defects but not for decorative matters or normal wear and tear.

The builder is normally responsible for the correction of minor defects for the first two years — again, this does not cover decorations or wear and tear.

Incentives
Builders often offer incentives to purchase, e.g. cheap mortgages, free health or redundancy insurance, or a price reduction for a rapid exchange of contracts. It is essential that the documents properly reflect what has been agreed.

Restrictions
The documents may contain restrictions on your use of the property to protect the remainder of the development. You should be sure you understand the scope of all restrictions. In many cases they are enforceable not only by the builder, but also by neighbours or sometimes the local authority.

Deposit
When buying from a builder the contract will say that the builder can use your deposit (to pay for further building). Obviously, this puts your money at risk if he fails to finish your house or goes into liquidation. If this point bothers you, you should discuss with us ways to minimise your risk.


14.   Residential Property - First Time Buyers

 From March 25th March 2010 until the 25th March 2012 a first time buyer of a property at a price of less than £250,000 will not pay any Stamp Duty. In order to take advantage of this certain conditions must be satisfied as follows: -

1. You must be buying the property as your first home. If you have ever owned a property before anywhere you cannot take advantage of this exemption. The qualification is absolute and it does not matter whether you owned the property a long time ago. The fact that you have owned property previously means you are not eligible for the exemption. 

2. The rules of the exemption apply whether you are buying property solely or jointly. If you are buying property jointly, then any other persons purchasing with you must also be first time buyers. Therefore, if one person is a first time buyer and the other is not, the exemption is not available. 

3. To be eligible the property must be bought for the purposes of being your home. 

4. Completion must take place after 25th March 2010 and before 25th March 2012.

5. If you have owned property anywhere in the world then you cannot use the exemption, for example if you own a property in France, but have never bought a property in this country then you will still have to pay the Stamp Duty. 

Please note it is a criminal offence to provide misleading information to the Inland Revenue regarding Stamp Duty which could result in criminal prosecution


15.   Litigation - Small Claims Court

This is not actually a separate court, but rather a procedure for dealing with certain smaller claims in the county court. It is officially called the "small claims track". Its main features are: 


It is designed for non-complicated claims of less than £5,000 
(or £1,000 in personal injury cases)

There will be an informal hearing before a judge
The usual rules of evidence do not apply, you will not be under oath and limited time is allowed (usually not more than a day)

A solicitor is not required
Although you can have one if you wish. But you will have to pay his fees yourself, even if you win

Procedure

You obtain a form N1 from the county court.

You fill it in, make copies (for the court and for each defendant) and take it back to the court. It will be issued (sent to the defendant). You will be required to pay the issue fee (which will vary, depending on the size of your claim, between £30 and £120).

If the defendant doesn't reply within 14 days, or if he admits your claim, you will get judgment in your favour.

If the defendant disputes your claim you will receive a copy of his defence together with a court form for you to fill in. On the basis of this form the judge will allocate the case to the small claims track if he thinks it appropriate. There are some rules that can have an adverse effect upon your position if you have issued proceedings and later look to abandon your claim.

You will receive a form telling you when the hearing will be, how much time is allowed for it and what you need to do, e.g. send copies of all documents to the court and to the defendant. You will now pay another fee (£80). (In some cases the judge may decide that no hearing is necessary and will make his decision from the paperwork, but mostly there will be a hearing.)

You attend the hearing and put your case (and the defendant puts his). You can have someone to speak for you, e.g. a solicitor or lay-person, but you will have to pay their fee yourself. You may have witnesses or experts speak only if the judge has agreed.

At the end of the hearing the judge will make his decision.

You can only appeal if the judge gives his permission.

What does it cost?

Court fees — issue fee between £30 and £120

If your claim is over £1500, fee for allocation to track of £100

Fees for experts

Fee for solicitor or other representative

What do you get if you win?
Whatever award the judge thinks appropriate, plus some or all of the following (at the judge's discretion):

Court fees paid by you

Up to £50 per day for you and each witness for loss of earnings

Travelling and overnight expenses

Expert's fees (up to a maximum of £200)

You may recover some costs for your legal adviser, although these are limited

Quite often, whether you win or lose, you will not get back any fees paid to a solicitor or other representative.

Note: Prices are correct at time of last review. Up-to-date information on fees, together with helpful guidance notes can be found on the court service website.


16.   Litigation - Holidays from Hell

When you book a package holiday, you are entering into a contract with the tour operator (not the travel agent). If things go wrong due to the fault of the tour operator, it is in breach of the contract and you may be entitled to compensation.


The contract
The contract is based on the tour operator's brochure — both the "booking conditions" (generally in small print) and descriptions of the specific holiday (hotel, resort and facilities) are part of the contract. You are entitled to receive what the brochure promises and its descriptions must not be inaccurate or misleading — but don't expect all the drawbacks to be pointed out.

Read the brochure carefully
Both the small print and the description pages:

Don't be fooled by lyrical descriptions:
"The hotel is set in the countryside immediately across the road from the beautiful beach." Sounds tranquil? But what about that road — is it a country lane or a six-lane highway? Countryside doesn't always mean quiet — dogs barking, donkeys braying — nor pleasantly smelling. And a "beautiful" beach — it doesn't say it's safe for swimming, nor even accessible.

Don't make assumptions:
If the brochure doesn't actually say the hotel has air-conditioning (or a pool, or bar or whatever else is important to you) then it probably doesn't have it — even if every other hotel on the page (or indeed whole brochure) does have it. If in doubt, ask the tour operator. If you get no satisfactory answer and the point is important to you, don't book.

Take the relevant pages of the brochure on holiday with you:
There's no way you'll remember all that small print.

Insurance
Travel insurance is important. Most tour operators will not accept your booking without insurance. Many tour operators want you to take their insurance. You do not have to do this — you can arrange your own insurance. (But the tour operator does not have to accept your booking.)

Cancellation
The contract comes into being when the booking is confirmed. Like any other contract, you do not have a right to cancel it just because you have changed your mind — even for good reason, like illness or redundancy.

If you do need to cancel the holiday, speak to the tour operator and explain the circumstances — but you will almost certainly lose some money. (Investigate your insurance to see whether this can be claimed back.)

Can the tour operator cancel the holiday?
The contract is as binding on the tour operator as on you and generally it cannot cancel without giving you compensation, although this does depend on what the booking conditions say.

Can the tour operator make changes?
The tour operator may be able to make small changes to your holiday. What kind of changes it can make will be in that "small print". However, if a major change is proposed:

you may be entitled to reject the holiday and require the return of any money you have paid (and you may be entitled to compensation if you have to spend more to buy a similar holiday), or

you can accept the change and go on the (different) holiday, sometimes coupled with compensation as per the booking conditions.

Sometimes the change will be made very close to the start of the holiday, and you may feel that if you reject it you might not be able to book a similar holiday elsewhere. In that case there is a third option: you could accept the change under protest (in writing), reserving your right to claim compensation for the breach of contract at a later date.

Complaining
If you arrive at your destination and the holiday is not as you expected you must make a complaint to the tour operator's representative — don't leave it until you return home or you may be deemed to have accepted it.

Golden rules for complaining

Do so as soon as you become aware of a problem.

Complain politely but firmly.

Put your complaint in writing — to the rep and to the tour operator, using its complaints form or procedure if there is one — and keep a copy.

Keep a record of your complaints and any suggestions made by the rep.

Don't reject a solution by the rep if it is the best they can do, even if it is not entirely satisfactory. However, if you accept a partial solution to the problem, make it clear that you are still not entirely happy.

Keep receipts for all extra expenses incurred because of the problem.

Gather evidence — photographs, movies.

Enlist witnesses and get their phone numbers and/or addresses in the UK.

If a problem affects other holidaymakers as well, combine resources for a joint complaint (both at the resort and on return to the UK).


Kinds of complaints

Flight delays:
You may receive surprisingly little compensation for these. New statutory regulations do affect your right to compensation for delays. For long delays you may be able to claim on your insurance.

Lost luggage:
The tour operator will usually not take responsibility. This leaves a claim on either the airline or your insurance (but not both).

The accommodation is not as described in the brochure:
Then it's breach of contract and you can claim compensation. But make sure you complain to the rep and try to get the problem rectified.

The accommodation you booked is not available:
Although your contract may specify particular accommodation, the booking conditions may allow the tour operator to substitute accommodation in the event of overbooking. However, the alternative accommodation must be of the same or higher quality or the contract will have been breached.

Standard of accommodation:
Even if not specifically mentioned in the brochure, you are entitled to accommodation of a reasonable standard of cleanliness and quality in keeping with the cost and type of holiday. This is a rather loose concept, but if you are not happy you should complain to the rep.

Safety:
The tour operator is responsible for the safety of the accommodation.

What the tour operator is not liable for
Obviously you cannot expect the tour operator to compensate you for things beyond its control — such as the weather, or local holidays or strikes making facilities unavailable.

After the holiday
When you return home, before you can take any other action, you must put your complaint in writing to the tour operator. You must do this within 28 days of returning (but check that the booking conditions do not alter this period) — although it may be rather longer than that before the tour operator responds. Make the seriousness of your complaint clear in your letter and enclose copies of any supporting evidence.

If you receive no satisfactory offer of compensation from the tour operator you will have to take the matter further, either with a small claims action or through arbitration. (Generally, arbitration is the usual route via ABTA.)

How much compensation?
How much you receive will depend on many circumstances. However, to simplify matters, you may be able to claim on a number of grounds:

Expenses:
You can claim your out-of-pocket expenses for everything you had to pay that you would not have done if you had received the holiday you booked.

Loss of enjoyment:
In most suits for breach of contract you can only claim for material loss, and cannot get damages for any distress or disappointment caused by the other party not fulfilling its obligations. However, with a holiday the whole point of the contract was to provide pleasure. When things go seriously wrong with holidays you can make a claim for damages that takes account of the disappointment, and even inconvenience, you suffer as a result — although of course loss of enjoyment is a very subjective matter and open to interpretation.

Pain and suffering:
If you suffered serious illness or injury due negligence on the part of the tour operator or hotel this is an entirely different matter and you really do need to consult a solicitor. Mark Goldstein will be happy to advise.

Trading standards
If your holiday was misrepresented in the brochure you can make a complaint to your local Trading Standards Officer who may prosecute the tour operator under the Trade Descriptions Act 1968. However, this will be a criminal prosecution and will not offer you any compensation — so you will still need to pursue a civil action.


17.   Employment - Family Friendly Law

The law has recently undergone substantial change, providing a raft of new rights for working parents in the workplace. So long as the working parent meets the specific qualifying requirements for the specific right in question, the working parent is entitled to the following basic minimum statutory rights:



Parental leave;


Leave in cases of family emergency;


Right to request a flexible working pattern.


It is, of course, open to the employer to provide greater rights through provisions in the contract of employment.

Notice Requirements
In order to benefit from most of these rights, the employee must give the employer the appropriate notice to claim leave and pay, providing the necessary information. Timetables for sending notices are strict and unless the employee provides the appropriate notice within time, or in some cases as soon as reasonably practicable, there is a risk that the employee will forfeit his or her rights. In some cases, employees also have to give the appropriate notice at the end of the leave period (usually when returning early).

Equally, employers are under a duty to respond within strict deadlines, and a failure to do so may amount to a detriment, allowing the employee to bring a claim in the Employment Tribunal. 

Enforcement and Remedies
If a qualifying employee seeks to assert one of these rights and suffers a detriment or dismissal as a result, he or she may apply to an Employment Tribunal for:


Unfair dismissal (where there is a statutory cap on compensation — currently exceeds £60,000);


Sex discrimination (where there is no compensation limit); or 


Compensation for suffering a detriment by asserting the specific statutory right (various limits).


The types (or "heads") of losses for which the Employment Tribunal may order compensation are as follows:


Loss of earnings, including future loss of earnings to a period determined by the Employment Tribunal;


Value of benefits lost as a result of the employee suffering detriment or dismissal;


Injury to feelings, up to £25,000 — but in certain cases, awards may exceed this figure;


Personal Injury (e.g. diagnosed psychiatric stress or other illness caused by the employer breaching "family-friendly" rights);


Aggravated damages, where the loss of earnings may be low but the employer's acts have a much larger impact than that measured by loss of earnings compensation.



Claims in the Employment Tribunal usually may only be brought within a limited time of the act complained of. Missing this deadline may mean that the employee loses his or her right to bring a claim.

The information on these pages is only a brief summary and is intended as a guide to the rights. If you have any specific questions with regards to these "family-friendly" rights, you should seek legal advice. The law as stated is accurate as of 6th April 2005.


18.   Employment - Selling a Business

 If you are selling your business you must inform your employees, via either the trade union or an employee representative. The information given must include not only the fact of the sale, but also the date of the transfer of the business, the reasons for the sale, and the implications for employees' future within the business. You must give this information before the transfer to enable consultation to take place.


Failure to comply with these requirements could result in having to pay a considerable amount of salary to each affected employee for the failure to consult alone, and vastly more if the employees claim they were unfairly dismissed or constructively unfairly dismissed.

The regulations are, of course, more involved than this brief outline can cover and there are other complications when selling or buying a business. You should contact Nigel Emery if you would like detailed advice


19.   Employment - Religious Discrimination

Since December 2003, it has been illegal for employers to discriminate on religious grounds.


The above sounds plain enough, but in fact is open to interpretation. For instance, what is the definition of "religion" and what exactly constitutes discrimination?

What is Religion?
This is not actually defined in the regulations, so it is left to tribunals to decide whether or not discrimination was on religious grounds.

Broadly, all the world's established religions will of course be included, but also some philosophical beliefs such as Humanism. However, the regulations specifically exclude political beliefs.

It should be noted that it is also illegal to discriminate against a person because they do not hold a particular faith — or, indeed, any faith at all.

What is Discrimination?
This is defined as treating someone unfairly on religious grounds. Again, it sounds plain enough but there may be pitfalls.

There are various kinds of discrimination:

Direct Discrimination
This could be refusing promotion or training, or giving adverse terms and conditions of employment, or dismissal.

Indirect Discrimination
This may occur when rules or working conditions not aimed specifically at the practitioners of a particular religion do inadvertently have the effect of discriminating against them, for instance dress codes may fall into this category.

Conversely, allowing special arrangements for employees holding particular religious beliefs (e.g. time off), may place burdens on other workers and constitute discrimination against those not holding the belief.

Harassment
This is defined as offensive or frightening behaviour, e.g. bullying or teasing.

It is important to note that the harassment need not come from the management — the employer is still liable if the harassment is by the victim's fellow-employees. The management not knowing about the behaviour is no defence — it is the employer's responsibility to discover whether harassment is occurring.

Employers are responsible for the behaviour of their staff not only towards other employees, but also to other people on the organisation's premises, e.g. a repair person.

The harassment need not be intentionally malicious — what fellow workers regard as good-humoured teasing may amount to harassment. What is important is how the victim feels about it.

Non-Employees
Not only current employees are covered by the regulations. It is illegal to refuse to appoint someone to a position on religious grounds, or to make the interview conditions disadvantageous to persons of particular faiths.

When the employment ends, the obligation not to discriminate persists, e.g. in the giving of references.


20.   Employment - Redundancy

This article is for guidance purposes only, and you are advised to seek specific legal advice in relation to any employment law question that you may have. The law is stated as correct on 6th April 2005. 

Redundancy 
What is Redundancy?
Redundancy situations arise where: 

an employer ceases (or intends to cease) to carry on business for the purposes for which the employee was employed, or in the place where the employee was employed; or

the requirements of the business for employees to carry out work of a particular kind (whether or not it is where the employee is employed) has ceased or diminished. 

In such situations the employer is entitled to make employees redundant.

Sometimes circumstances arise which do not create redundancies in the strict sense, for example where the employer restructures the business to reduce overheads, when the requirements of the business for employees to carry out work for a particular kind has not actually diminished. In these sorts of cases, dismissal of "surplus" staff after restructuring may amount to a fair reason to dismiss someone on the grounds of an "economic, technical or organisational" ("ETO") reason. In practical terms, there is usually a large amount of overlap between ETO dismissals and redundancies, and similar legal principles apply to both. For the purposes of this article, only redundancies in the strict sense have been considered.

Employee Rights
Employees have the following rights:

If there are more than 20 redundancies in a 90-day period, specific rights as to consultation and notice of impending redundancies;

In all cases where the employee has more than one year of continuous service, a right not be unfairly selected; and 

If the employee has been employed for more than two years, he or she may have a right to a redundancy payment.

If an employee is unfairly selected due to any reason connected with sex, race, disability, religion, sexual orientation etc, he or she may have a discrimination claim.

Unfair selection for redundancy may mean that an employee may be able to claim unfair dismissal in an Employment Tribunal, where there is an index linked limit for compensation which exceeds £60,000. Discrimination claims, however, have no limit to compensation.

What is a Fair Redundancy?
The employer usually has to overcome two hurdles in order to safeguard against an unfair redundancy dismissal. Firstly, the employer must show that there is a true redundancy situation and that the reason for dismissing the employee is as a result of that situation. Where there is (or there is anticipated) a sustained downturn in turnover, it is usually easy to prove that there is a true redundancy situation.

Secondly, the selection of the actual employee must also be fair. This requires the employer to implement consultation and assessment procedures, and to judge all employees at risk of redundancy on objective grounds. Most employers who are successfully sued by dismissed employees fail at this second hurdle. 

It is essential that the employer follows the correct procedure; even more so since Statutory Dismissal procedures came into force on 1st October 2004.

Employers must remember that it is the job, not the employee, that is redundant.

Steps to Ensure a Fair Selection
No two companies are the same, so it is difficult to provide a generic checklist as to what an employer must do. However, for guidance purposes, the employer should bear the following in mind:

Has the employer considered alternatives to making redundancies to reach the desired objectives?

Has the employer created an appropriate "pool" of employees for selection of those at risk?

Have the employees within the "pool" been adequately consulted?

Has there been a fair and objective assessment of those within the "pool"?

If there are 20 or more redundancies within a 90-day period, has the employer complied with its specific duties of consultation, and notification to the DTI?

Are there any employees whose selection may amount to an automatic unfair dismissal?

Automatic Unfair Dismissal
When selecting individuals for redundancy, employers must be careful not to select them for a reason connected with a prescribed list of reasons, which makes the dismissal automatically unfair. Examples of reasons which are automatically unfair are if the employee is selected for being on maternity leave, or it is union related, or health and safety related. 

Payments made to Redundant Employees
All employees are entitled to at least one week's statutory notice after a month of continuous notice, which increases in line with their period of service. Alternatively, the contract of employment may provide for a longer period of notice. In either case, the employee is entitled to receive such notice, or payment in lieu of notice if made redundant without notice.

Furthermore, employees with more than two years' service are entitled to statutory redundancy pay, which is calculated by multiplying a maximum amount of statutory gross pay per week by a figure established through assessing the length of service and age at the date of the dismissal. There are some exceptions to the rule. If you are unsure about your rights you should seek specific advice. 

Ex gratia Payments and Compromise Agreements
Many employers pay ex gratia sums over and above the statutory minimum to employees who have been made redundant, or have a contractual redundancy scheme that applies. Special rules on tax apply to such payments, and it is possible to have them paid tax-free. From the employee's perspective, it provides much needed security at a time when he or she is looking for an alternative job.

Employers may use these payments to reward good service, or just to ensure good employee relations. However, ex gratia payments, without the force of a compromise agreement, do not protect employers from a claim in the Employment Tribunal. Ironically, the payment may end up being the "fighting fund" allowing the employee to fund legal costs in bringing a claim.

The only way to ensure that this does not happen is to enter into a valid "compromise agreement" with the employee. This must be in writing and needs to satisfy special conditions (e.g. the employee must receive independent legal advice before signing). However the benefits of a compromise agreement far outweigh the formalities of the way it must be entered into. With a compromise agreement, the employer and employee can agree that, upon the payment of the ex gratia amount, the employee agrees not to bring proceedings in the Employment Tribunal for a list of claims such as unfair dismissal and discrimination.

Conclusions
Redundancy situations always give rise to a period of uncertainty and stress for both the employer and the workforce, even to those that survive the exercise. For the employee, mishandling by the employer may give rise to claims in the Employment Tribunal for unfair dismissal and/or discrimination. For the employer, mishandling may mean not only having to defend a claim, but also upsetting employer-employee relations with staff that remain. As a result, it is in both sides' interests that it is handled thoughtfully, cautiously, and with proper consideration of the rights of employees concerned.

If you need further advice, whether you are an employee who has been dismissed, or an employer embarking on a redundancy exercise, please feel free to contact our employment law specialist Nigel Emery.

21.   Employment - Family Rights

There are several family-oriented rights, the rules for some of which have undergone a change. 


Parental Leave
The qualification rules for parental leave are somewhat complicated by a change in the legislation. If you are unsure whether it applies to your situation, you should seek specific advice.

This right generally applies to employees who have been continuously employed for more than one year (including in some cases with a previous employer) and have children who were born or placed for adoption:

Between 15th December 1994 and 14th December 1999, in which case the employee is entitled to take leave until 31st March 2005 (or the child's eighteenth birthday, if sooner, in the case of an adopted child);

On or after 15th December 1999, in which case leave must be taken before the child's fifth birthday (or within the fifth year after placement and before the child reaches eighteen years of age in the case of an adopted child); and

In the case of a disabled child, before the child's eighteenth birthday.

The employee is entitled to 13 weeks unpaid leave per child (except in the case of a disabled child, where the employee is entitled to 18 weeks unpaid leave). Unless the contract of employment states otherwise, generally the employee will be entitled to take leave in segments of up to four weeks in any twelve-month period.

In some cases, the employer is entitled to postpone the leave for up to six months if the operation of the business is unduly disrupted.

Leave for Family Emergencies
All employees are entitled to take a reasonable period of leave in the case of an emergency concerning their dependants (including dependant adults). To qualify as an emergency, the event will usually have to be unforeseen (e.g. a child's sickness at school, causing the employee to pick the child up from school). The amount of leave must be reasonable. If the employee takes such leave he or she must inform the employer as soon as reasonably practicable that he or she has taken such leave, giving reasons, and stating when he or she expects to be back at work. 

Flexible Working
This is a new right that gives employees who meet the relevant criteria (e.g. as to service and age of dependant children) the right to request a variation of their working patterns and/or hours so as to be able to take care of dependant children. 

Once a formal request has been made, the employer is obliged to follow a strict timetable to discuss and decide the issue. A request may only be refused if the employer gives a valid "business ground", which is prescribed by the legislation. A failure to comply with the procedure and/or a failure to give a genuine business ground to substantiate a refusal will allow the employee to bring a claim in the Employment Tribunal.

The new rules are in addition to the existing duty not to discriminate on the grounds of sex when an employee makes a request to vary hours as a result of childcare responsibilities. It would appear that this new right now strengthens the position of all employees, whether they satisfy the criteria for the legislation or not, because granting flexible working to qualifying employees will open the way for non-qualifying employees to demand similar rights, with the threat of bringing a discrimination claim if they do not get them.


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