At Hart Reade we feel it important to draw people's attention to the pitfalls and potential disasters of using an online Will service.  Making a Will is an important step and needs to be carried out with an expert who can understand your circumstances and what you want to accomplish from your Will and can guide you through the law so that this can be achieved.

Solicitors are governed by the Solicitors Act and regulated by The Solicitors Regulation Authority, and will have undergone many years of training to qualify.  They will want to see a client face to face to ensure that the client understands what they want to do and that they have the mental capacity to sign a Will.  An identity check is carried out to ensure that the person is whom they claim to be.  The solicitor will provide advice ranging from tax considerations to preserving assets from care fees to ensure that what is proposed is the best way of achieving the client's desired outcome.

Solicitors are being asked to check many online Wills free of charge, but are unable to do so if they have never met the client.  Also it is understood that many online systems do not ask financial details so they are unable to check the Inheritance Tax and other legal implications.  Whilst a free of cheap Will may seem attractive, it is fraught with danger and the worst thing is that some problems will not manifest themselves until after the death of the person making the Will.

Changing Terms of Employment

North Lanarkshire Council v Cowan – EAT – 06/08

The Employment Tribunal held that where an employer proposes a package of interrelated measures affecting employment, employees cannot cherry pick which terms to accept and which to reject.   In the absence of agreement in respect of the whole package of measures, the proposed variations will be unilateral (and ineffective) and the original terms will remain.

Robinson v Tescom Corporation – EAT – 8/3/08

If an employee does not agree with proposed changes to their employment and if the employee does not want to resign, he/she can either agree to work the new terms under protest or refuse to work under the new contract – the employee cannot combine both options as happened in this case.

In this case the Employment Appeal Tribunal found that an employee who agreed to work under new terms of employment under protest but subsequently insisted on working on his old terms of employment had not been unfairly dismissed. Having agreed to work the new terms, the employee could not subsequently refuse to do so. 

Restrictive Covenants

WRN Limited v Ayris – High Court – 21/5/08

The High Court found that a restriction in an employment contract preventing an employee from having contact (after leaving the employment) with any of the employer’s customers was too wide. The clause should have been restricted to the customers the employee dealt with. The case is also a reminder that the reasonableness of post termination restrictions will be considered with reference to the employee’s job title at the date of entering into them and will not take into account any subsequent promotions.

50 or more Employees:

(i)       Information and Consultation

From the 6 April 2008 the Information and Consultation of Employees Regulations 2004 (ICER) will now apply to all employers with 50 or more employees. It is estimated that the ICER will potentially now apply to over 75% of UK employers.

 

The ICER require UK employers to set up information and consultation agreements governing how they will consult their employees about economic and employment related matters.

 

Employers however should not be alarmed. The obligations under the ICER are not automatic and will only arise where:

• a valid written request has been made by the employees or

• The employer has initiated the process by serving a valid notice on the employees.

(ii)       Occupational and Personal Pension 

            Schemes

The Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 which introduced a requirement for employers to undertake consultation before making changes to occupational and personal pension schemes will be extended to cover undertakings with 50 or more employees.

The Right to Annual Leave during Sick Leave

Schultz-Hoff v Deutsche Rentenvericherung Bund – ECJ – 28/2/08

The Advocate General has now handed down his opinion on the entitlement to annual leave after a period of absence due to illness.

The Advocate General has said that:

• workers unable to take leave due to illness in any leave year are entitled to take that leave when they return to work even if they return in a subsequent leave year.

• If employment has been terminated, a payment in lieu of that leave must be made.

Increased Rates for Statutory Maternity Pay, Statutory Sick Pay, Statutory Paternity Pay and Statutory Adoption Pay

From the 6 April 2008, the above rates have been increased to:

• Statutory Maternity Pay - £117.18 per week

• Statutory Sick Pay - £75.40 per week

• Statutory Paternity and Adoption Pay - £117.18 per week

National Minimum Wage Increases for October 2008

The Government has announced that the National Minimum Wage will be increased on the 1 October 2008 to:

• Adult Rate - £5.73 per hour

• Development Rate - £4.77 per hour

• 16 – 17 year olds - £3.53 per hour

Burrow Down Support Services v Rossiter – EAT – 26/6/08

The EAT confirmed a night watchman was entitled to the national minimum wage for all working hours, including those during which he slept.

Neufeld v (1) A & N Communications In Print in Liquidation (2) Secretary of State for Trade and Industry - EAT – 11/4/08

The Employment Appeal Tribunal found that a controlling shareholder in a Company which was placed in liquidation was an employee and was entitled to a statutory redundancy payment, notice pay and holiday pay from the Secretary of State for Trade and Industry.

Unrepresented Litigants in the Employment Tribunal

Hyde-Walsh v Ashby and Others – EAT 19/2/08

The Employment Appeal Tribunal has held that Tribunals are not under a duty to consider claims that Claimants in person ought to have brought but did not bring even if such claims are fairly evident from the facts of the case.

Disability Discrimination

Coleman v Attridge Law and Law – ECJ – 17/7/08

The European Court of Justice has ruled that the Equal Treatment Framework Directive protects employees who are not disabled but endure direct discrimination and/or harassment because they are associated with a disabled person. The Claimant in this case was a carer of a disabled person and felt she had been discriminated against because of that.

London Borough of Lewisham v Malcolm – HL 25/6/08

The House of Lords considered the definition of disability related discrimination and found that:

(i)   An employer cannot be liable for discrimination unless it knows, or ought to have known of the disability

 

(ii)   the disability must have played a motivating part in the decision of the alleged discriminator to inflict the treatment complained of

 

(iii)   the correct comparator is a person who does not have the disability but whose circumstances are similar.

Amendments to Sex Discrimination Act 1975

The Sex Discrimination Act 1975 has been amended. The definition of sex harassment has been widened and employers have been made liable in certain circumstances for the harassment of an employee by a third party (e.g. a customer or supplier). The definition of discrimination on the grounds of pregnancy or maternity has also been slightly amended to remove the need for a formal comparator of any kind.

Age Discrimination

Wilkinson v Springwell Engineering Ltd - ET - 25/2/08

The employee was 18 years of age. The Tribunal found the Employer had made stereotypical assumptions founded on age to the detriment of the employee and had assumed a relationship between experience and age and capability. The employee was awarded £5,000 for injury to feelings and loss of earnings up to the date of the hearing and future losses of 26 weeks. In addition the Tribunal also applied an uplift to the compensation on the basis that the employer had failed to follow any procedure before dismissing her.

Race Discrimination

Ladele v London Borough of Islington – ET – 30/05/08

The Employment Tribunal found that a Registrar of Births, Deaths and Marriages had been discriminated against on the grounds of her religion by requiring her to participate in civil partnership services against her orthodox Christian beliefs – that particular duty could have been allocated to others, without any adverse impact on the Employers services.

Noah v Sarah Desrosiers t/a Wedge – ET- 29/5/08

A hair salon refused to offer a job to a Muslim hairdresser who insisted on wearing a headscarf because it was essential to her beliefs. The hair salon argued it was a requirement of the job for a hair stylist’s own hair to be on show. The Employment Tribunal found this amounted to indirect discrimination on the grounds of religion.

Disciplinary Procedures

Yorkshire Housing Ltd v Swanson – EAT -12/6/08

The Employment Appeal Tribunal confirmed that an unreasonable delay in complying with any step of the standard dismissal and disciplinary procedure is to be regarded as non-completion of the statutory procedures despite the fact both parties continue with the procedure to its conclusion. The consequence is that the employee could be regarded as automatically unfairly dismissed. In this case there was a delay of 5 months between the disciplinary hearing and notification of the outcome to the employee.

Grievance Letter

Bottomley v Wakefield District Housing –EAT - 08/1/08

Employees who were transferred to a new employer under TUPE were not prevented from bringing an Employment Tribunal claim against their new employer based on a grievance addressed to their previous employer, provided it has actually been sent to the new employer.

Procek v Oakford Farms – EAT – 02/7/08

The Employment Appeal Tribunal decided that a written complaint which stated that it was informal, nevertheless triggered the statutory grievance procedure.

Married couples and civil partners whose spouse or civil partner dies without leaving a Will are to benefit from an increase in the statutory legacy under proposals due to take place on 1 February 2009.

Concerns had been expressed that the levels of the statutory legacy were too low, currently £125,000 where there are children and £200,000 where there are not.  The levels will now go up to £250,000 and £450,000 respectively.

Head of Probate and Trusts Department, John Benson commented:"The increase will give extra protection to married couples and civil partners whose spouse or civil partner dies without making a Will.  But it also highlights how important it is for both men and women to make arrangements through a carefully drafted Will for their loved ones in the event of their deaths."

"Married couples and civil partners should not assume that when their spouse or civil partner dies, they will automatically be entitled to everything.  Individuals should make sure that their wishes are respected by making a Will."

Hart Reade are pleased to announce that Ben Grover has been appointed Assistant Solicitor in the firm’s Property Department in the Eastbourne office.  Ben qualified as a Solicitor in October 2007 and has recently relocated from Hertfordshire to East Sussex.  Ben deals mainly with commercial matters – property, business advice, business transfers and Landlord & Tenant work.  Away from the office Ben is interested in film, books, running and swimming.

14 December 2007 - Start Date

Not the most important date in December with Christmas on our minds but from 14 December 2007 all homes marketed for sale in England and Wales will need a Home Information Pack (HIP).  The Government has now set out it's criteria for phasing in the implementation of HIPs including Energy Performance Certificates (EPC's).  Important information is as follows:

Continued first day marketing

Agents are still able to market properties as soon as a HIP has been commissioned.  This concession is extended to 31 May 2008 and therefore as soon as you have instructed us to commission your HIP you can advise your agent and the property can go on the market.

Leasehold

As it now covers all properties Leasehold properties will require a HIP.  Although additional information will be required to produce a HIP for Leasehold properties in future, at present only the Lease itself needs to be incorporated in the HIP.  Other information is likely to be required from 31 August 2008.

Properties marketed before the commencement date

Provided the properties are genuinely on the market before the appropriate commencement date i.e. before 14 December for 1 and 2 bedroom properties, 10 September for 3 bedroom properties and 1 August for 4 bedroom plus properties then a Pack will not be required.  This exemption will continue for as long as the marketing continues but the Government has advised that it may appoint a date in the future when all properties will be subject to the HIP duties regardless of when it was first marketed.  It is unlikely this will be before 31 May 2008.

New Builds

Newly constructed properties which have been built subject to part L of the Building Regulations 2006 will not require an EPC until April 2008.

Commercial Properties

Energy Performance Certificates (EPC) will be required during the next year for commercial buildings:

6 April 2008 - those over 10,000 square meters;

1 July 2008 - those over 2,500 square meters;

1 October 2008 - All commercial buildings.

All other residential buildings will also require an EPC from 1 October 2008.

We are here to help

We have a link of local dedicated Domestic Energy Assessors (those who prepare EPCs) and can offer HIPs for as little as £250 (subject to VAT and additional costs where the Local Authority in which the property is based charges are higher than others).

What is the advantage of instructing us to prepare your HIP?

1. We can provide you with all the necessary paperwork

    to progress your sale early.

2. We know our Domestic Energy Assessors.

3. We do not put personal searches in our HIPs.  Most

    solicitors acting for buyers and some mortgage

    companies are not prepared to accept personal 

    searches.

If you wish to discuss HIPs further with any of our Conveyancing Department please feel free to contact:

Andrew Pluck (Eastbourne) - apluck@hartreade.co.uk or 01323 727321

Jan Hollands (Eastbourne) - jhollands@hartreade.co.uk or 01323 727321

Andrew Rannie (Hailsham) - arannie@hartreade.co.uk or 01323 841481

Congratulations are due to Rachel Cox, Legal Assistant in our Family and Matrimonial Department on qualifying as a Fellow of the Institute of Legal Executives in October.

A recently reported decision of the Special Tax Commissioners has highlighted the importance of obtaining good advice on Nil Rate Band Trust schemes.  Hart Reade have been aware of the potential difficulty that this case highlights for some time.  The problem centres around section 103 of The Finance Act 1986, which in essence disallows a deduction of a debt where the subject matter of the debt is property received from the deceased.  It is important for clients to give full details of gifts between spouses when preparing or reviewing their Wills and on implementation following the first death.

If clients are concerned that the circumstances may apply to them, they should be advised to contact their usual adviser as steps taken in their Wills can remove any potential problem.

The new Solicitors Code of Conduct comes into force on 1 July 2007 and enshrines core duties of solicitors which are:

Fours days are to be added to the minimum four weeks paid holiday from 1 October 2007 under draft regulations published by the Government with a further four days proposed from 1 April 2009.  However, employers may opt for these additional days to include statutory bank holidays.