[This is part two of a three part series on the “employer-friendly” policies which the Coalition Government have implemented during their tenure.]

The employer-friendly policies have the aim of reducing potential liabilities on employers in order to encourage employment within the workplace. With the lowest unemployment figures since late 2008, 1.96 million at the end of September 2014, this gives added scope for the Government to suggest that these new policies have assisted that aim.

In this post I will discuss the introduction of time off for ante-natal appointments for fathers or partners in October 2014.

Before this update, the right to paid time off during working hours “for the purpose of receiving antenatal care” extended only to pregnant women. However, as of 1^st October 2014, an expectant father or the pregnant woman’s partner will be entitled to paid time off work to attend two antenatal appointments. The maximum time permitted per appointment is six and half hours which includes time for travelling, waiting and attendance at the appointment.

Employees and qualifying agency workers will be eligible to the time off if they are either:

1. the baby’s father or parent;
2. the expectant mother’s spouse, civil partner or partner in an enduring relationship; or
3. intended parents of a child in a surrogacy arrangement.

This right will apply to an employee regardless of their length of service, although it will only apply to agency workers after they have completed 12 weeks service.

This additional right may cause concern for some employers as to how they are able to verify the employee’s antenatal appointment or whether they satisfy the criteria which would allow them to attend. Employers cannot ask for evidence of the appointment, for example the appointment card, as this is the pregnant woman’s property. However, the employer can ask for written confirmation from the employee confirming:

1. That they are in a “qualifying relationship”, either with the pregnant woman or the expected child (including surrogacy);
2. That they are taking the time off to accompany the pregnant woman to the ante-natal appointment, having been arranged on the advice of a registered medial practitioner, midwife or nurse; and
3. The date and time of the appointment.

If employers do not permit the employee to take this paid time off, an employment tribunal can award the employee a payment equivalent to twice the hourly rate of pay for each hour that could have been taken off. Further, if an employee is dismissed for taking time off work to accompany a woman to an antenatal appointment, that dismissal will be automatically unfair.

These new rules are part of the Government’s plans for both parents of a child to be involved in caring for their children, in advance of a new entitlement in 5^th April 2015 for employees to take shared parental leave with the mother of the child in the first year of their child’s life or in the first year after their child’s placement for adoption.

Please feel free to drop me an email or give me a call on 01908 660 966 if you have any questions about taking this leave to attend an ante-natal appointment – I’d be happy help. Are you an employer – have you had employees take this leave to attend an ant-natal appoint? I would be interested to hear your feedback on how this has helped or hindered employee management and morale in your business.

[This is part one of a three part series on the “employer-friendly” policies which the Coalition Government have implemented during their tenure.]

The employer-friendly policies have the aim of reducing potential liabilities on employers in order to encourage employment within the workplace. With the lowest unemployment figures since late 2008, 1.97 million at the end of August 2014, this will give added scope for the Government to suggest that these new policies have assisted that aim.

In this post I will discuss the introduction of Flexible Working Requests in June 2014.

Prior to June 2014, any employee with at least 26 weeks service could request a flexible working arrangement to allow them to care for a child aged 16 or under (18 or under if disabled). As of the 30th June 2014, the right to request flexible working arrangements apply to all employees who have 26 weeks’ continuous employment, regardless of their reasons for requesting a flexible working arrangement – they do not need to have children to qualify for this right.

The employer is still be able to refuse the employee’s request on one or more of eight grounds for refusal, but now has three months to provide the employee with its decision.

The eight grounds upon which an employer can refuse a flexible working request are:

1. the burden of additional costs;
2. detrimental effect on ability to meet customer demand;
3. inability to reorganise work among existing staff;
4. inability to recruit additional staff;
5. detrimental impact on quality;
6. detrimental impact on performance;
7. insufficiency of work during the periods the employee proposes to work; or
8. planned structural changes.

Any request made by an employee must be dealt with by the employer within 3 months and the new procedure emphasises that the employer must deal with the request reasonably, as a failure to do so is a ground for complaint by an employee at an Employment Tribunal.

Are you considering making a request for flexible working to your employer and would like to talk it through? Please feel free to drop me an email or give me a call on 01908 660966. Are you an employer – have you received flexible working requests from your employees? I would be interested to hear your feedback on how this has helped or hindered employee management and morale in your business.

I was asked to answer this question recently on our local radio station (BBC Radio Northampton). This was a topic on Helen Blaby’s lunchtime show where they picked up on the subject following the Oscar Pistorius case and, more closer to home, Sheffield United footballer Chedwyn (Ched) Evans.

The International Paralympic Committee have said that Oscar Pistorius will be able to compete in future events, despite his conviction. Here in the UK, Ched Evans has today been released from prison after serving a sentence following a conviction for rape.

The reason Helen was having this discussion was because there is a petition (of more than 140,000) signatures from football fans to Ched’s former employers, Sheffield United, to urge them NOT re-sign him after his release. The Deputy Prime Minister, Nick Clegg, has also urged Sheffield United to, “think really long and hard”, before re-signing Ched.

Have a listen to my interview and you will hear Helen asking me what my views and experience are on issues like:

• What are the “norms” when hiring people with criminal records?
• Does the seriousness of the crime have an impact on the convicted person’s ability to be re-hired or not?
• The commercial issues that may outweigh any employment issues of considering to employ people with criminal records
• When an employee has to disclose a conviction to prospective or existing employers
• Can an employer dismiss an employee if they get convicted of a crime?
• The existence of ‘good behaviour’ clauses in employment contracts, dealing with behaviour outside the work place

Please let me know any thoughts you may have of the interview once you have listened to it.

Do you have any experience of convicted people returning to the workplace, or being denied re-employment? I’d be interested to hear about this and answer any questions you may have from an employment law perspective. Please leave a comment below, or email me direct on ben.stanton@franklins-sols.co.uk..

Death is the last thing people like to think about however, as everyone knows it is one certainty in life that we can’t simply ignore. As a business owner life is very hectic and it is understandable that consideration for what happens after you’re no longer around isn’t at the top of your list. However, what would happen to your business and your dependants if something was to happen to you tomorrow?

Careful and thorough planning should be taken when considering the future of any shareholding in a private trading company. I am going to detail some elements which need some serious consideration – some you may have thought of already – but others not.

Business Property Relief

Before you decide where you would want your shareholding of your business to go, in the event of your death, consideration should be given to the potential inheritance tax implications.

Inheritance Tax is a charge against your estate, mainly on death. Currently, the first £325,000 of your estate is taxed at 0%, this is commonly called the ‘nil rate band’. The value of your estate above £325,000 would be taxed at 40%. There are various exemptions and reliefs available to reduce your inheritance tax liability, one of which is Business Property Relief (BPR).

As a business owner, BPR is a relief which is too valuable to waste. Unquoted shares (but not securities) in a company could potentially qualify for 100% relief from Inheritance Tax, effectively meaning total exemption. The relief is only applicable after two years of ownership and is only available to trading businesses. Also, no relief is given to a business which consists wholly or mainly of dealing in securities, stocks or shares, land or buildings or making or holding investments.

Your Will

I, along with many private client solicitors, would highly recommend that you deal with any business shareholdings specifically within your Will. You will need to think carefully as to who you would like to gift the shareholdings to, in order to take full advantage of BPR.

You should avoid making a specific gift of the business shareholdings to your spouse. A spouse is an exempt beneficiary for inheritance tax purposes. Any gift of the shares to an exempt beneficiary will waste any potential BPR. You should also be careful if assets qualifying for BPR fall into your residuary estate and all or part of the residuary estate passes to an exempt beneficiary.

Likewise you also need to be cautious if you leave a specific gift to a non-exempt beneficiary of property which then does not qualify for the relief. In some cases this can result in the BPR being wasted or even cause your Inheritance Tax liability to increase.

You may consider gifting the shareholdings to your children, however, in some cases this might not be a sensible solution as the children could be too young or there are a number of children and for practical reasons this would not be suitable.

Taking into account the above, it is difficult to decide who to gift the shareholding to. An effective solution could be to gift the shareholding into a Discretionary Trust.

Discretionary Trust

A Discretionary Trust is a flexible Trust whereby no beneficiary has an automatic right to the capital or income. You would name a pool of beneficiaries and the Trustees have the discretion to decide who from those named should receive capital and/or income from the Trust. It is normal practice to place a letter of wishes alongside the Will expressing your intentions and providing guidance. The Trustees are not bound by the letter of wishes but it will assist them with making decisions.

Placing assets, such as unquoted shares, which qualify for BPR into a Discretionary Trust provides a number of advantages:

1. A surviving spouse can be a beneficiary ensuring that they are sufficiently provided for and not cut out.
2. HMRC will not consider whether BPR assets qualify for relief unless Inheritance Tax is at stake. They will therefore be encouraged to make a decision. If BPR assets were left outright to a spouse or civil partner HMRC would have no need to consider the relief. This can make future Estate Planning for the spouse difficult.
3. If BPR is not available, the assets can be distributed to any surviving spouse or civil partner within 2 years in order to secure spousal exemption.
4. If BPR is available, the assets can remain in Trust and avoid on going Inheritance Tax charges.
5. If it is intended that children or grandchildren will take over the business in the future but they are currently too young, a gift into a discretionary Trust which includes them as beneficiaries allows decisions about business succession to be deferred.

Review your Will

If you have unquoted shares in a business we would recommend that you review your Will to ensure that these have been dealt with in the most appropriate and tax efficient manner. At the same time you should consider the businesses’ Articles of Association or Shareholder Agreement to ensure these reflect your intentions under your Will.

If you need some support in planning your Will and in deciding on who and how to gift your shareholding of your business – please comment below, give me a call on 01604 828 282, or feel free to email me for a private conversation or free initial consultation.

Contracts for the sale and purchase of Commercial Property are governed by the Standard Commercial Property Conditions (Second Edition) (“SCPC”). The SCPC provide guidance to both the Seller and the Buyer as to the procedure and requirements in each stage of the transaction. These conditions can be varied or removed depending on the agreement between the respective parties.

I’ve put together this post to help provide you with some information in case you are or anticipate being in a position where you are unable to complete on the contractual completion date.

The contractual completion date is usually agreed on the exchange of Contracts between both parties’ solicitors. Alternatively, if a date is not agreed – then SCPC 8.1.1 provides that completion is to take place within 20 working days after the exchange of Contracts; time is not of the essence for these purposes.

A rare situation where a Buyer may be unable to complete could be due to not having sufficient funds to be able to complete or alternatively, the Seller may be unable to complete if the transaction is part of a chain and the Seller’s purchase fails to complete in readiness of its own sale. In these circumstances, the defaulting party will be in breach of Contract and the innocent party is entitled to claim damages.   If the Buyer is in default, SCPC 9.3 provides that the Seller will be entitled to interest which is calculated at the Contract rate on the purchase less any deposit monies paid.

In the event of delay and where the innocent party cannot foresee the defaulting party being able to complete, then the innocent party may serve a Notice to Complete (“Notice”). A Notice must be in writing and can be served at any time on or after the contractual completion on the defaulting party or its Solicitor. SCPC 8.8 states that the innocent party must be “ready able and willing to complete,” meaning that it must be in a position to be able perform its own obligations under the Contract.

Once a Notice is served, time is of the essence and the defaulting party must complete within 10 working days. Further, the Buyer must immediately pay the 10% deposit to the Seller.

In a situation where the defaulting party is unable to perform its obligations after the Notice has been served, then the following remedies are available:

SCPC 9.5.1 allows the Seller to rescind the Contract in the event the Buyer fails to comply with the notice to complete together with the following rights:

• To forfeit the Contract and keep any deposit and accrued interest;
• To resell the property; and
• To claim damages.

In the event that the defaulting party is the Seller, SCPC 9.6 allows the Buyer to rescind the Contract and the deposit is to be repaid by the Seller together with accrued interest.

In both events of default, the Buyer must return the documents to the Seller and cancel any registration of the Contract.

It is important to be mindful of the contractual completion date and how to observe and perform your obligations under a Contract.

If you have been served or anticipate being served with a Notice to Complete, it is important for you to discuss the options available to you and the remedies of the innocent party if you are unable to comply.

If you would like to discuss this further, please feel free to contact me or my colleague, Saima Ul-Haq, on 01908 660 966 (Commercial Property Department – Milton Keynes) or alternatively via email on: sarah.evans@franklins-sols.co.uk or saima.ulhaq@franklins-sols.co.uk

Image courtesy of 123rf.com

As of 6th May 2014, claimants who wish to bring a tribunal claim against their employers must now engage in the compulsory “Early Conciliation” process. This process is facilitated by the Advisory, Conciliation and Arbitration Service (ACAS) and is aimed at encouraging the parties to reach a settlement to any employment dispute without having to proceed with a hearing at the employment tribunal.

The compulsory Early Conciliation process will apply to most claimants, although there are exceptional circumstances where the individual will not need to comply with this procedure. For the majority of cases however, the claimant must now contact ACAS either by telephone or by completing a notification form to advise of their dispute. ACAS will then contact the individual in order to see whether they would be interested in engaging in Early Conciliation and, if so, a conciliator will then aim to contact both parties in an attempt to reach settlement. If settlement is not possible, ACAS will issue a certificate marking the end of the process. The individual will then need to issue their claim with the tribunal if they did wish to commence proceedings against their employer.

The Early Conciliation process extends the time by which an individual has to bring their claim. In most cases, an individual has three months minus one day to issue their tribunal claim but, by engaging in Early Conciliation, this time limit stops. Time starts running again from the date the claimant is deemed to have received the Early Conciliation certificate confirming that Early Conciliation between the parties was not possible. Claimants will not therefore know the exact new time limit for bringing their claims until they have received their Early Conciliation certificate.

Whilst Early Conciliation is not a new process itself and has always been available, it is now largely a compulsory step. It is hoped that by making this a compulsory requirement, claims reaching the employment tribunal will be further reduced as the parties will be encouraged to reach a settlement in a faster, cheaper and less time consuming way without the stress of a tribunal hearing. This is a further tactic by the Government to reduce tribunal claims, something which it has already achieved by bringing in Employment Tribunal Fees in July 2013 – employment tribunal claims between October and December 2013 were down 79% compared to the previous year.

If you would like to know more about how these changes may affect you, please feel free to call one of our employment team or myself on 01908 660966 or emailing ben.stanton@franklins-sols.co.uk or my team on EmployWeb@franklins-sols.co.uk.