Kent Solicitors

Who can attend disciplinary or dismissal meetings (including redundancy)?

Under the Employment Relations Act 1999 s.10, an employee has a right to be accompanied at a disciplinary or grievance hearing. This includes hearings where the employer is thinking of making redundancies

The employee can ask for either a trade union representative or work colleague to be with him

The employee may ask for the hearing to be postponed (within specified limits) to an alternative time, if the companion cannot attend the meeting at the time scheduled by the employer
The companion may address the hearing and confer with the employee, but cannot answer questions on his or her behalf.

Labels: Disciplinary dismissal employment

What rights do employees have to attend interviews or look for work when working out their notice period

You must have 2 years continuous service.

Employees, who are being made redundant, are entitled to reasonable time off with pay to find alternative employment, attend interviews, arrange training for future employment.

Time off can be taken during working hours (to be agreed with the employer) within the notice period.

Labels: Notice periods employees rights redundancy

The exact mathematical calculation for working out statutory redundancy pay

To work out the exact statutory pay entitlement of an employee, 3 items of information are needed

The date of birth of the employee

His or her length of service

His or her gross annual salary

The calculation is

A weeks pay (current statutory maximum = 350 pounds a week pay from February 2009)

Multiplied by

0.5 weeks pay for each full year of service where age during year less than 22

weeks pay for each full year of service where age during year is 22 or above, but less than 41

1.5 weeks pay for each full year of service where age during year is 41+

No more than the last 20 years service can be taken into account

Labels: Statutory Redundancy Pay Calculation

In a short marriage, the Court will generally look at what assets each of the parties brought into the marriage, especially where there are no children.

Labels: Finance marriage assets

If an employee

· works though, and is paid by, an agency for X months at a client
· then joins the client and works for Y months
· and is then dismissed

How many months continuous employment does the employee have X months? Or X+Y months?

It is important because the employee does not acquire the right to be unfairly dismissed until he has clocked up 12 months continuous service.

In several 2008 cases, the

· employer argued for X months only and
· employee argued that there existed an implied employee contract with the client so that the period of continuous employment was X + Y months

The Courts have now said that where an agency contract is genuinely in place, then there is no need to imply a contract between the agency employee and the client (“an implied contract”), especially where there is no need to do so

This means that the Tribunal should now consider whether the client

· could (or did on occasions) refuse to accept a different employee
· guaranteed work throughout the period of contract
· paid the employee when work did not take place

If he could or did do these things, then this points towards an implied contract - otherwise not!

Labels: Agency worker continuous employment

Unfair dismissal claims are capped at 66,200 pounds from 1 February 2009. However, Employment Tribunals can award unlimited damages for breaches of whistle blower protection laws.

Whistle blowing is not just to do financial irregularity or criminal offences. Staff can report employers for

breach of contractual obligation, for example, breach of contract for failing to pay a bonus

breach of statutory obligation, for example, breach of health and safety

failure to protect an employee who reports stress or bullying.

The ultimate cost in the loss of reputation to the employer might be more damaging than the money claim.

Labels: whistle blowing employment unfair dismissal

Death is certain, yet the majority of us die without making a Will.

A Will is a statement of how you want your possessions to be dealt with when you die. A Will should be made to:

• ensure your wishes are followed when you die;

• make sure that the right people benefit and not the tax man;

• make sure your dependants are provided for

If you don't make a Will your spouse will not automatically get everything!

It is easy to make a Will. It doesn't take very long and is relatively inexpensive. A correctly drawn Will can minimise the amount of tax payable on your Estate and also save you money.

To make a Will, first make a list of your assets/possessions.

Then consider who you would like to be responsible for your Will on your death - your Executors. Executors should really be younger than you, and therefore more likely to outlive you. They should be trustworthy people whom you would want to deal with your affairs. You can appoint up to four executors and you need a minimum of two if children are to inherit. Many people appoint a close relative or friend and a Solicitor thereby giving the personal and professional input in any decisions that have to be made.

The basic facts

The people who benefit from your Will are called Beneficiaries

A pecuniary legacy is a gift of money e.g. "I give 100 pounds to…"

A specific legacy is the gift of an item. You can distribute personal possessions in a Will e.g. "I give my wedding ring to my daughter Charlotte".

Children must reach the age of 18 before they can inherit what is left to them in a Will. You can raise this age if you wish, but doing this can have tax implications. Until the children reach 18 (or the specific age) the money is held in trust.

You can also appoint Guardians in a Will for your natural and/or adopted children.

You can leave your house to whoever you wish - either within the rest of your Estate or as a separate legacy. If the house is in joint names the Land Registry entries may need to be changed first.

You can leave a life interest in a property that you own - this means that the Beneficiary has the use of the property during their lifetime. but on their death it passes in accordance with the terms of your Will.

You should consider whether anyone could make a claim on your Estate under the Inheritance (Provision for Family and Dependants) Act 1975 - this could include a former spouse who has not remarried, children from a former marriage, anyone whom you have been financially supporting.

For further information telephone Vanessa Adamson at Kaslers on 01622 844607

Labels: Will Legacies guardians beneficiaries

How crazy is this !

You run a residential home and employ a care worker.

She works only 8 hours a week but sleeps over 7 nights a week in a flat provided for her for free and is 'on call' for 11 hours overnight

She is 'called' on average once every 2 weeks

How many hours per week does she work as far as the Working Time Regulations (WTR) and the National Minimum Wage (NMW) legislation is concerned.

WTR - You guessed it. She has a working week of 85 hours (the eight hours actually worked, plus 77 on call) - more than the 48 hour limit on average weekly working hours.

NMW - She has a working week of 85 hours less the time when she was actually asleep. Ask her when she dozed off and when she awoke. Pay her the NMW for all that time less those sleeping hours

Labels: employment working time regulations

An employee makes a complaint, but says it should be dealt with informally.

Do not do this as it is a trap!

Treat all informal complaints as step 1 notifications under the statutory grievance procedure

Carry out the full statutory procedure (i.e. arrange a step 2 meeting).

Labels: Unfair dismissal

There is now a pre-action protocol for possession claims based on mortgage arrears in respect of residential properties, which aims to make proceedings for residential possession claims a last resort.

Major lenders agreed with the government in late 2008 to allow 3 or 6 months before beginning possession proceedings against homeowners who have fallen into arrears with mortgage payments.

Call us now 0845 270 2511 for a fixed fee meeting £150 + VAT to discuss re-scheduling your mortgage

Labels: mortgage arrears fixed fee meeting kings hill

An Employee hands in his/her notice. He has 2 weeks holiday due to him/her

Check that your standard contract allows you to insist that he/she takes holiday during the notice periods, without your having to give prior warning to the employee.

Labels: dismissal employment holiday pay

Your employee behaves so badly that you dismiss outright.

You do not want to pay him accrued holiday pay.

The contract says you do not have to! Good!

No! Such a clause is in breach of the Working Time Regulations, which say that accrued holiday pay must be paid irrespective of the reason for the termination.

Change your contract. Provide that on summary dismissal, holidays will be paid for, but at the rate of 1 pound per day.

Labels: dismissal employment holiday pay

You are a Landlord of residential premises let on an Assured Shorthold Tenancy and the tenant is not paying you rent . What can you do ?

OPTION A
AST near end and getting the tenant out is the priority – money is secondary

1. If you have dealt with the deposit correctly; are near the end of AST and are prepared to forego money, just give 2 month's notice under s21 Housing Act 1988, use the accelerated procedure and you get an order for possession quickly without a hearing. You cannot claim rent in those proceedings

2. The court will only award fixed costs - which are nominal

3. However, if at a later date, you can then find the tenant and you think they might be able to pay, you could then sue them separately for the money

4. If you have not dealt with deposit correctly, you cannot do Para 1 above

OPTION B
AST not near end and the money is important. Speed and possession is not the priority

1. If the AST has some time to go and whether or not you have dealt with deposit correctly, if the rent arrears are more than 2 months; you can serve 2 weeks notice under s 8 telling the tenant why you are about to sue him for possession and arrears

2. If the tenant is still 2 months in arrears at the court hearing, the court must give possession and will award the rent

3. If the tenant pays the rent or reduces the arrears below 2 months, you will not get possession and will have to content yourself with such installments as the court orders for any arrears

4. If the tenant does not argue the amount of rent payable, the court will probably only award fixed costs - which are nominal

OPTION C - AST near end and possession / money are of equal priority - speed not so important

1. If the AST is near the end and if you have dealt with deposit correctly, give 2 month's notice under s 21 to ask for possession and rent, but do not use the accelerated procedure, sue for possession - and rent (although do not use rent as one of the grounds for possession)

2. The court must give possession and will award the rent

3. The court might award fuller costs rather than fixed, nominal costs [serve schedule of costs claimed 24 hours before hearing]


MISCELLANEOUS

1. If the tenant proves over time to be a persistent offender , you may be able to get the court to recognize on the second or third court case and get an order for possession whatever the rent arrears are

2. It does not matter that someone else (not the tenant) paid the deposit

3. Until it is corrected, failure to deal with the deposit correctly leads to inability to use s 21 and possibly an order to repay the tenant 3 times the deposit


Call Felicity Keeler of Kaslers Solicitors LLP on 01622 891711

Labels: Assured Shorthold Tenancies

Planning permission is usually required do any building works in under or over ground

The Government can make exceptions to this rule by listing out, in a General Permitted Development Order, types of permitted development for which it is not necessary to get planning permission.

A local planning authority (or the Secretary of State) may, however, take away the permitted development rights within a specified area (Article 4) so that planning permission is required after all

So, you want a conservatory. That is building work over land, but certain sizes of conservatory are listed in a GPDO. The salesman may tell you that it does not need planning permission. Check whether your local authority has made an article 4 direction removing that size of conservatory from the GPDO so you need planning permission after all.

Labels: Planning Permission Permitted Development

Who would have believed that an arbitration clause in a standard consumer contract might be ineffective! However

The Unfair Terms in Consumer Contracts Regulations 1999 say that 'a contractual term which has not been individually negotiated shall be regarded as unfair if it causes a significant imbalance in the parties rights and obligations arising under the contract, to the detriment of the consumer

and 'excluding or hindering a consumers right to take legal action by requiring the consumer to take disputes exclusively to arbitration will be indicative of a term being unfair'.

So an arbitration clause in a standard consumer contract will probably be ineffective, unless it is explained to the consumer, who then consents having understood the implications.

Labels: Contracts Arbitration Unfair Terms

Many people in dispute prefer to avoid the courts and lawyers!

They prefer to ask an expert in the particular field to decide the argument between them without too much formality

Is such an expert determination binding or not? It is a matter of contract. The parties can decide although what is the point of doing it this way if the disappointed party can ignore the determination?

Informal determinations carry a risk of error and informality, but that is the price of speed and taking the cheaper option

Labels: contracts

Your terms and conditions should provide that ownership of goods supplied by you do not pass to the buyer until they have been paid for.

You will be able to reclaim the goods if the full price is not paid.

Since title has not passed, the goods will not be included in any security given by the buyer to his bank or anyone else.

Depending on the nature for your trade, you might want to use a more sophisticated ROT clause which:

reserves title until the buyer has paid for all goods supplied by the seller (not just those being sold in this particular instance);

extend your rights to the proceeds of sale of the goods

retains your rights over goods, even if they have been mixed and incorporated into other goods (not easy, that one!)

· Allows you to enter the buyer’s premises to reclaim the goods

· Requires the buyer to store the items separately and identifiably

Labels: Retention of Title

You receive a statutory demand and are therefore facing bankruptcy (if you are an individual) or winding up (if the debtor is a company). What can you do? You can

Pay up in full if you agree you owe the money

Try to agree a payment plan with the creditor

Dispute the debt in full or part. The Court must be satisfied that there is a genuine dispute on substantial grounds. If the undisputed part of the debt is reduced below 750 pounds, the creditor cannot proceed to issue a bankruptcy or winding up petition

Raise a genuine and serious cross-claim, which either exceeds the debt, or reduces the undisputed debt to below 750 pounds

Pay an amount which reduces the undisputed debt to below 750 pounds


If you told the creditor beforehand that you disputed the debt, you should speak to us about setting aside the statutory demand (if you are an individual) or getting an injunction to restrain the creditor from issuing a winding-up petition winding up (if the debtor is a company)

Labels: statutory demand dispute

There are several ways you can go about collecting a debt

If the debt exceeds £750 and there is absolutely no hint of a reason why it might be contested, you can serve a statutory demand

Failure to comply with the demand (or to contest it) within 3 weeks means that the debtor is deemed unable to pay the debt for insolvency purposes

You can then petition for bankruptcy (if the debtor is an individual) or winding up (if the debtor is an company)

Labels: Statutory Demand Debt

For a Limited Period to start off the 2009 New Year we are offering a Fixed Fee Meeting for 50 pounds inc VAT, to discuss your unique situation.

Local appointments in Kings Hill, near Maidstone, Kent. Early evening and Saturday appointments are also available.

For further details call Michelle Brennan direct on 07795 821 793 or by email: mab@kaslers.co.uk Alternatively please ring the office number 0845 270 2511 (local rate) and ask for Michelle.

Labels: Divorce Fixed Fee Meeting

As our population ages, financial independence is becoming one of the growing concerns for retiring adults and their families, as well as our Government. People worry about paying Inheritance Tax but consider this - the Inland Revenue take 40% tax on assets over 312,000 pounds. (Tax Year 08/09) But you are dead! If you are taken into care, the Local Authority can take almost 100% of your assets. And you are still alive!

The National Health Service provides acute services usually in hospital which are 'free at the point of delivery'. But increasingly, patients no longer stay in hospital for recuperation. As soon as your condition has stabilised, you are discharged. Where do you go?

Home - To be looked after by caring relatives, who are prepared to sacrifice their earning opportunities, privacy and social life.

Private Nursing Home - If you can afford the 300-1,000 pounds per week, depending on location and amenities provided.

Local Authority - They can provide help in your home, at day centres or can buy-in beds from the private sector. The Local Authority provide a free assessment of your needs but target their resources where need is greatest.

If you need non-residential services, the Local Authority cannot charge more than it is reasonably practical to pay, but charging procedures varies from one Local Authority to another.

For non-residential services, there is a Means Test. If you have more than 22,250 pounds capital (which can, in certain circumstances, include your home) you will pay the standard fee.
When your capital is reduced below 22,250 pounds, other considerations apply. These are too involved for this fact sheet but it is not good news. A small personal weekly expenses allowance is given to meet the costs for clothing, haircuts, toiletries, treats and presents for relatives and friends!

The Local Authority can only assess the means of the person requiring care, not those of a spouse or partner.

It is not necessarily effective (or desirable) simply to give away assets and let time pass. The Local Authority will argue that you intentionally deprived yourself of assets and that the gift should be ignored.

Local Authorities, in this area of work, act in their own financial interests and are not out to advise you. Therefore you should take advice on the detailed rules as they apply to your present financial position and circumstances.

Whatever age you are, you should ideally plan for your old age. If you are over 50 and even in good health, you might appreciate a full 'wealth check' to encompass

Will
IHT planning
Lasting Powers of Attorney
Funeral Planning
Equalising Estates

Often, consideration has to be given to former spouses, children by first marriages, adopted or illegitimate children, family disputes. It is not sufficient to deal with the above areas in isolation.

For an initial discussion please contact Vanessa Adamson at Kaslers on 01622 844 607

Labels: Wills IHT Planning Estates Lasting Power of Attorney

In trying to negotiate a financial settlement, difficulties arise when one party refuses to inform the other what they are looking for or what their intentions are.

A party who is not open and honest in this respect will not state what they intend to do but will pretend first to want to do ABC - to see what reaction they get - and then to pretend to want to do XYZ - to see what reaction they get and then to decide which gives them the better position

Problems can especially arise when there is one significant income producing asset over the capital of which the parties are fighting (Killing the goose that lays the golden egg) e.g. a share portfolio, the dividends from which have been the major income stream for the divorcing couple

Here one party might say 'we cannot sell the former matrimonial home because of the market, but I need half the share portfolio so I can sell it to put down a deposit on a new property'.

That request might be received sympathetically, but then if that same party then says 'do not sell the shares to raise money, but give me half the share portfolio in a spread of investments as I do not want all my eggs in one basket' might provoke an adverse response, if the dividend income is the only thing keeping the former matrimonial home paid for

Further difficulties can be caused if, because of the tax position, it is sensible to offset one asset against the other e.g. better not to crystallise a capital gains tax liability by selling / transferring shares, but rather leave the shares where they are but then adjust the division of the sale proceeds of the former matrimonial home

That exercise can become fiendishly complicated if the values of both shares and house are volatile (as seen in the share and housing markets in the second half of 2008)

For a meeting to hear a clear analysis of the options available to you in your particular financial circumstances, phone Michelle Brennan 07795 821 793

Labels: divorce separation financial settlements

Many of our middle-aged clients are signing up Lasting Powers of Attorney (LPAs) as a direct consequence of their experience of dealing with the affairs of an elderly parent who did not have one. They do not want to put their children through the same hassle

Why? What happens if you lose mental capacity and you have not given an LPA? Answer: Neither you nor your family can mange your financial affairs or make decisions about your personal welfare. Your nearest relatives have to apply to the Court of Protection for a “Deputy” to be appointed. This is a complicated and expensive procedure.

By signing up an LPA, you simply appoint somebody else (the Attorney) to act on your behalf if and when you lose mental capacity to act. It cannot be used until it has been registered with the Court.

You can appoint one or more Attorneys, who must be over the age of 18. You can say whether your Attorneys have to act jointly or independently or you can state that they can act independently on some matters and jointly on others. For example, you could say that they have to act jointly on all transactions involving over £500.

You can also lay down guidelines for your Attorneys- e.g. whether they should use your funds to make gifts to friends, family and/or charity and even do a new Will for you

You can stipulate whether the Attorney can make decisions regarding life-sustaining treatment for you.

It goes without saying that you must trust your Attorney implicitly!

Here at Kaslers Solicitors LLP we can prepare the LPA for you for a fee of £400 plus VAT. The Court charge £300 to register, but if you do not require the document to be used immediately, we can defer the registration and arrange for you to pay monthly towards the Court fee


Telephone Vanessa Adamson on 01622 844607 for further information.

Labels: Lasting Power of Attorney Alzheimers schizophrenia dementia

For a Limited Period to start off the 2009 New Year we are offering a Fixed Fee Meeting for 50 pounds plus VAT, to discuss your unique situation.

Local appointments in Kings Hill, near Maidstone, Kent. Early evening and Saturday appointments are available in Kings Hill.

For further details ...

Call Michael Breeze direct on 07900 195 195 or 0845 270 2511 (local rate) to set up an appointment

Labels: divorce fixed fee meetings

Conditional Fee Agreements - otherwise known as 'no win-no fee' agreements - in commercial litigation.

A solicitor's perspective

The use of Conditional Fee Agreements started in personal injury/road traffic accident cases and, after initial difficulties, these seem to be are working quite well. However, the issues there are usually limited to deciding whether the Defendant was at fault, deciding whether the Claimant was contributorily negligent, ascertaining the extent of the injuries, putting a price on them, ascertaining/guessing how long the claimant might be financially affected

Witness statements, medical and police reports become available at a fairly early stage and reasonably informed judgments on such matters can be made

How does this translate into commercial litigation? This issue needs to be addressed as economic conditions drive more and more potential litigants into asking for Conditional Fee Agreements, thinking that they are the solution to all their worries about the risks of litigation and legal costs

Obviously, the circumstances giving rise to the potential commercial litigation are many and various. There are a much wider range of variables, which can affect the win/lose outcome

Initially, the potential litigant, seeking a Conditional Fee Agreement, needs to understand the various risks involved and, if he does have access to money, decide whether to fund the litigation in the usual way or potentially paying more for someone else to assume those risks

The main risks are: Insolvency Risk (Opponent), Litigation Risk, Insolvency Risk (Own). Taking these in turn.

Insolvency Risk (Opponent)

In personal injury/road traffic accident cases, the Defendant is usually backed by an insurer or the Motor Insurers Bureau. There is little risk that having got judgment, one is not going to get paid

In commercial matters, the risk is significant. Who would have hesitated in, say, summer 2008 before suing, say, Woolworths or Lehman brothers on the ground that they might become insolvent?

If the potential litigant is asking for be solicitor to pursue this risk, what information is available to the solicitor about this risk? Company accounts filed at Companies House can be at least a year old and the late 2008 recession happened so quickly that they are certainly not a guide to the continued prosperity of the potential Defendant

If the potential Defendant is an individual, research at the Land Registry might reveal his potential ownership of land/house, but this does not help you assess the value of it, the amount of his mortgage and the size of any co-owners interest (e.g. what share does the spouse have?)

Did the client do any due diligence on the Defendants financial position before entering into the relationship, which gave rise to be litigation and if so, how reliable is the information?

Clearly, if the potential Claimant is going to pay someone else to assume this risk, the price is going to be high


Litigation risk

This is this is the risk that solicitors might more easily be able to judge? Or is it?

After seeing the client/potential claimant, is the solicitor in any position to judge, with any reasonable accuracy, the outcome of the case in the same way that the solicitor taking initial instructions from the potential claimant in a personal injury/road traffic accident case might be able to do?

Probably not! The solicitor will be in a better position to judge after he has written to the potential Defendant and received a response setting out the Defendants view of the situation

At this point, a solicitor might feel able to start discussing with the potential claimant the terms of the Conditional Fee Agreement

However, this is not foolproof. Experiences of the author includes the following situations

The claimant had a "cast iron" insurance claim for damage caused to his garden and wine cellar by the neighbours lake overflowing. Many months into the litigation, the insurers produced a well documented dossier on the claimants exaggerations of the damages caused to his wine cellar, "fiddles" on the VAT invoices of the ground work contractors restoring the garden and so on. He was lucky that the insurer was still prepared to settle (at a much lower amount, than the genuine claim was worth) and did not refer the matter to the police

An employee has a "cast-iron" claim for unfair dismissal against his employer. Some months into the proceedings, the employer produced a well documented dossier of the Claimant employees participation in an invoicing fraud involving suppliers to the employer

No doubt, the terms of any Conditional Fee Agreement can provide for such revelations, but the agreement starts to become complicated if it tries to cover all possibilities and the solicitor then has to bear in mind the next risk


Insolvency risk (own)

The Conditional Fee Agreement may provide that in certain circumstances, the claimant client will have to pay be solicitors basic charges or the success fee or both

This might be in the circumstances mentioned above where the Claimant has been up to no good or it might be where the claimant client, not the solicitor, is going to assume the Insolvency Risk (Opponent).

In other words, after several thousand pounds worth of work into the proceedings, the Defendant goes into liquidation. No money is likely to be received. The Conditional Fee Agreement requires that the claimant client now pay the legal costs incurred to date.

This is where the solicitor will have wished he had done due diligence of his own clients financial position

Conclusion

For a discussion about CFAs on nay litigation you have in mind , ring Michael Breeze on 07 900 195 195

Labels: conditional fee agreement no win no fee litigation