Two commonly misunderstood terms in employment law are Unfair Dismissal and Wrongful Dismissal, although they sound similar, they differ in their legal basis, focus and remedies.

Legal Basis

Unfair dismissal is governed by the Employment Rights Act 1966 and focuses on whether the employer’s decision to terminate the employee was justified and handled fairly. Employees are required to have a period of two years qualifying service in order to challenge their dismissal as unfair, if they believe it was without a valid reason or carried out improperly.

Wrongful dismissal, however, arises from contract law rather than statutory law. It occurs when an employer breaches the terms of an employee’s contract e.g., failing to provide the correct notice period (or payment in lieu of notice). A wrongful dismissal claim does not focus on the reason for dismissal but rather on whether the employer adhered to the agreed contractual terms.

Focus

For Unfair Dismissal, the focus is on the reason and process of dismissal, for example being dismissed for discriminatory reasons, without a valid reason e.g redundancy or not following a proper disciplinary or grievance procedure. For Wrongful Dismissal, however, the focus is on the contractual rights of the employee. For example, an employee might claim Wrongful Dismissal if the employer dismisses them without serving the correct notice period and the dismissal breaches other terms of their contract.

Eligibility

To be able to make a claim for Unfair Dismissal, employees generally need to have a minimum of two years qualifying period of continuous employment to bring a claim. Certain dismissals, for example those related to discrimination or whistleblowing are deemed automatically unfair and do not require a qualifying period.

For Wrongful Dismissal, there is no minimum service requirement and any employee with a valid contract can bring a claim for Wrongful Dismissal if their contractual terms are breached.

Remedies

Remedies for Unfair Dismissal are determined by a Tribunal and can include the following:

1. Reinstatement to the employee’s former role

2. Re-engagement in a similar role

3. Compensation, which often consists of a basic award and a compensatory award based onlost earnings and future prospects

Remedies for Wrongful Dismissal is primarily damages to compensate the employee for the financial loss caused by the breach of contract. This damage usually covers the unpaid notice period or other contractual entitlements e.g., bonuses or benefits.

Recent changes that have been made to the law

The government has recently introduced some reforms to the law which aims to enhance worker protections and modify existing employment practices. One of the biggest changes they have introduced is a day one right to claim Unfair Dismissal instead of needing to have a minimum of two years of continuous employment. This is beneficial to employees as they would gain immediate protection against being unfairly dismissed, which would improve their sense of security and confidence in their workplace. However, for employers, it would mean they would need to be more diligent from day one in documenting reasons for termination to ensure it complies with the law.

To conclude, Unfair Dismissal and Wrongful Dismissal both relate to the termination of employment, however their distinctions lie in the underlying laws, focus and remedies. Employers must ensure that they follow the correct procedures and contractual obligations to minimise the risk of disputes.

For employees, understanding these key differences can help in seeking the appropriate legal advice if they believe their dismissal was unfair or unlawful.

 If you are facing a dismissal issue and would like to seek legal advice further, please contact our Employment Law team on 01604 936512 / 01908 953674 or email info@franklins-sols.co.uk.

The Employment Rights Bill of 2024 introduces many new reforms that are aimed to enhance employee protections while imposing new responsibilities on employers.

Key provisions of the Employment Rights Bill and their implications for Employers

1. Flexible working requests- Employers must now accommodate flexible working requests from employees starting on day one of employment. An employer can still refuse a flexible working request, however, they must provide detailed written justifications for their refusal e.g might not be suitable for the specific business.

2. Family leave and bereavement rights- Employees now have eligibility for parental, paternity leave as well as bereavement leave. Whilst this is beneficial for the employee, this could disrupt operations of business for employers especially smaller firms.

3. Statutory sick pay- Sick pay will now start from the first day of absence and income thresholds have been removed. Employers, therefore, face higher costs especially for low-paid workers or those in physically demanding roles prone to illnesses.

4. Regulations on zero-hours contracts- Employers must offer guaranteed hours to qualifying workers and provide reasonable notice for shift changes or cancellations. These requirements will reduce operational flexibility but improve workforce satisfaction.

5. Mandatory Equality Action Plans- Larger employers (250+) are required to publish annual equality and diversity plans which adds another layer of compliance and reporting, which will require HR resources.

6. Ban on Exploitative Internships- The proposed ban on unpaid internships, may increase costs for employers, but it will also clarify the employment status of interns, reducing legal uncertainties.

7. Ban on Fire and Rehire Practices- The Bill will make it automatically unfair to dismiss an employee if the main reason for dismissal is due to the employer wanting to vary the employee’s contract. This makes is harder for employers who have genuine reasons for wanting to restructure or change the contractual terms for business reasons.

The impact the budget has on employers

1. National Living Wage increase- The National Living Wage has been increased which narrows pay gaps between age groups. This raises labour costs for employers, especially in industries like hospitality and retail where wages are usually lower.

2. Business Tax Adjustments- Corporate tax relief for green investments and training initiatives was introduced, encouraging long-term growth and sustainability. However, the overall tax burden remains high for many businesses, limiting immediate profitability.

3. Support for SMEs- Enhanced funding for digital transformation and energy efficiency upgrades provides a lifeline for small and medium enterprises (SMEs). However, accessing these benefits may require navigating complex application processes, adding to administrative burdens.

4. Infrastructure and Training Investments- The Bill emphasises increased funding for training programs. While this could address skill shortages, employers may initially face challenges in upskilling existing staff.

Overall, the Employment Rights Bill and budget has created some future challenges for employers, whilst also creating opportunities for employees. Employers must balance compliance with operational efficiency while embracing reforms that prioritise employee well-being.

If you require any advice on your employment matters, please contact our Employment Law team on 01604 936512 / 01908 953674 or email info@franklins-sols.co.uk.

A Declaration of Trust is a legal document that establishes the ownership arrangement and beneficial interests in a property.

The Declaration of Trust is usually made at the time individuals decide to buy a property and the main purpose of it is to remove any uncertainty as to what will happen to each person’s money should they decide to sell the property in the future.

 Who should get a Declaration of Trust?

A Declaration of Trust is particularly important in the following scenarios:

1. Cohabiting couples- A Declaration of Trust ensures that each party’s financial contribution is acknowledged and protected, helping to remove uncertainty and assist with disagreements, should they arise, in the event that the couple decide to separate and the property is sold.

2. Friends or family buying together- When friends, siblings or other family members invest in property together, it is essential to have a clear agreement in place to avoid future disputes over ownership and contributions.

3. Unequal contributions- if one party contributes significantly more than the other toward the initial purchase price or will be contributing more to the ongoing mortgage, a Declaration of Trust clarifies the disparity in ownership percentages.

 What are the benefits of having a Declaration of Trust in place?

The primary benefit is that all parties to the Deed will have a clear understanding of their rights and responsibilities which avoids future disputes.

A Declaration of Trust ensures each party’s financial contributions are documented, protecting them in cases where there is a relationship breakdown or financial disagreements.

The document provides clear instructions for selling the property or transferring ownership which can reduce stress and conflict.

Lastly, the Declaration of Trust can be updated or modified to reflect changing circumstances e.g refinancing the mortgage or adjusting ownership shares.

 How can a Declaration of Trust be set up?

It is advisable to instruct a solicitor who specialises in this area who will guide you through the process to ensure that the document is tailored to your needs and is drafted correctly. At Franklins, the cost for preparing a Declaration of Trust starts at £450 plus VAT.

We will initially book you in for an appointment where you will discuss with the Solicitor, the details of ownership and your contributions to the property. During this meeting, the Solicitor will also discuss through any risks or other elements that should be considered when putting a Declaration of Trust in place. Once you have had a meeting, we will then prepare the declaration of trust to reflect those terms.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.

If you and your sibling have both been appointed as attorneys in a Lasting Power of Attorney (LPA), you may wonder how this will work in practice. In this blog I will explain the roles and responsibilities you both have as attorneys and what you can do should an issue arise between you. 

Your role and responsibility as an attorney

Being appointed to act as an attorney for someone is a serious responsibility. In choosing you to act, the donor likely felt you are a trusted individual who can take on the responsibility necessary for their future health and financial decisions. They likely believe you will make decisions in their best interests for when they become unable to.

Acting jointly as an attorney  

When acting jointly with your sibling as attorneys, your roles and responsibilities are similar to those of a sole attorney, but with some additional considerations due to the shared responsibility. Here are some key aspects of your role:-

1. You must work closely with your sibling to make decisions in the best interests of the donor.
2.  Strive to reach a consensus on decisions whenever possible. This may involve discussions, negotiations, and compromise to find solutions that align with the donor’s wishes and needs.
3. Hold each other accountable for fulfilling your duties and responsibilities as attorneys, including keeping accurate records, managing the donor’s affairs responsibly and avoiding any conflict of interest.
4.  Inform each other of any significant decisions or actions regarding the LPA. Regular communication ensures transparency and helps prevent misunderstandings.
5. Consult with each other as well as the donor if possible, when faced with important decisions or situations that may impact the donors welfare or interests.
6.  Ensure all actions taken by you both comply with the law, regulations, and the terms of the LPA.

By working together effectively and fulfilling your duties conscientiously, you can ensure that the donor’s best interests are prioritised and that their affairs are managed responsibly and ethically.

What happens if we cannot agree?

Conflict resolution

In the event that you and your sibling have disagreements, the following options are available to you when trying to resolve disputes:

1. Reaching an agreement: the first step would be to openly communicate with one another and express your concerns and try to reach a compromise.
2.  Obtaining legal advice: seeking legal advice from an experienced solicitor could help provide clarity on your rights and options. They can review the LPA document, assess the situation and offer guidance as to the best course of action.

Applying to the Court of Protection: if the disagreement is still ongoing and cannot be resolved through negotiation or obtaining legal advice, then applying to the court for intervention might be the alternative. The court can make decisions regarding the LPAs, including appointing replacement attorneys and providing guidance on specific issues.

Summary

Every dispute is different and depending on the circumstances, one dispute might take a different approach to another.

Obtaining legal advice may be a good option for you as it will provide clarity on your options and will not escalate matters too much.

Our Wills, Trusts and Probate team or our Litigation and Dispute Resolution team can advise you on next steps. Please give us a call on 01908 660966 or 01604 828282 or email info@franklins-sols.co.uk.