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Following the Supreme Court judgment on Employment Tribunal fees an announcement has now been made on the first stage of the scheme to be reimbursed fees paid whilst the fee regime was operational.
Up to around 1,000 people will now be contacted individually and given the chance to complete applications before the full scheme is opened up in the coming weeks.
If you paid a fee as well as being refunded this you will be entitled to interest of 0.5%, calculated from the date of the original payment up until the refund date.
The opening phase of the refund scheme will last for around 4 weeks. If you wish to register an interest in being refunded Tribunal fees paid we can assist and pre-register your refund request. Contact us at firstname.lastname@example.org.
A fee regime was in place from 29th July 2013 whereby fees had to be paid upon issuing a claim before an Employment Tribunal and upon the case going to a full trial. The fee for issuing a claim was either £160 or £250, depending on the type of claim. The hearing fee was £230 or £950. On 26th July 2017 a judicial review case was heard at the Supreme Court brought on an application by Unison against the Lord Chancellor. The Supreme Court declared that fees in the Employment Tribunal and Employment Appeal Tribunal were unlawful, under domestic and EU law. It quashed the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. The Supreme Court determined that the fee regime effectively prevented access to justice and was a breach of common law and constitutional rights. It was also held that it was indirectly discriminatory to have fees contrary to the Equality Act 2010.
As a result of this case all claims brought before an Employment Tribunal from now on will not incur a fee. It also means that that those Claimants that incurred fees at anytime during the four year period whilst the fee regime was in place are entitled to a refund. The detailed arrangements for recovering previously paid fees was due to be announced in September but the scheme has yet to be revealed.
There is now the potential for reinstatement of claims that were rejected by the Employment Tribunal as a result of a failure to pay the correct fee. There is also legal argument for allowing claims out of time on the basis that the Claimant could not afford to bring the claim when fees, that have now been held to be unlawful, were in place.
If you have any queries about fees or past or current claims our employment law expert, Jenny Carpenter can assist.
It is worth being aware that a new Civil Procedure Protocol comes in to effect on 1st October for debt recovery. Therefore, if you are a business seeking payment of a debt from an individual, including a sole trader there is a protocol you should be adhering to before you issue County Court proceedings. This includes proceedings within the small claims track. A formal letter of claim must be sent, containing specific information and providing the debtor with prescribed forms to complete and return within 30 days.
The protocol does not apply to business to business transactions and dealings.
The protocol could have a significant affect on companies and businesses owed money as the process to recover debts will be more cumbersome and time consuming. Debtors can delay payment by up to 90 days.
There will be penalties for businesses failing to adhere to the protocol by suing individuals before the protocol, including the letter of claim have been complied with. The consequences include:-
a) Further delay in collection of debts if the court determines that formal legal proceedings are stayed (paused) whilst failures to comply with the Protocol are dealt with.
b) The possibility of costs sanctions in that the creditor may not be able to recover their legal costs, or worst still will have to pay the debtor’s legal costs.
c) Inability to recover interest from a debtor or recovery at a reduced rate.
Some organisations may need to revise their debt recovery procedures to take into the new protocol.
We can provide advice on the procedures that you are required under the protocol to have in place. We can write on your behalf the formal Letter of Claim that is a requirement of the Protocol.
We all know that writing a Will is important, but too few of us recognise that we should also consider something called a Lasting Power of Attorney (LPA.) LPAs give another individual the legal authority to look after specific aspects of your affairs. There are two types of LPA:
1. Health and Welfare- This allows you to choose a person (or persons) to make decisions about things like your daily routine and medical care.
2. Property and Financial Affairs- This allows you to choose a person (or persons) to make decisions about money and property such as paying bills or selling your home.
As people may become incapacitated through accident or illness, we would recommend putting in place an LPA at the earliest opportunity. If you do not have an LPA and later become mentally incapacitated, relatives may face delays and expense applying to the Court of Protection to take control of your finances.
For an LPA to be effective, it must be registered with The Office of Public Guardian. Your Attorneys can only act on your behalf once the LPA has been registered. If it is a Health and Welfare LPA, then they can only act once the LPA has been registered and you have lost mental capacity.
EPAs were replaced by LPAs in 2007. If you have already made an EPA, it is still valid, but does not allow your Attorneys to make decisions about your health and welfare. You may therefore wish to consider putting an LPA in place for Health and Welfare.
You may be surprised to learn that it is possible to alter someone’s Will after their death, providing that any beneficiaries left worse off by the changes agree. The changes can be made by what is known as a deed of variation.
If someone dies intestate (without a Will) then the intestacy rules govern who inherits. A deed of variation can also be used to change the inheritance in the same way as if there was a Will.
There are various reasons why it may be a sensible idea to change a Will or redirect inheritance under the intestacy rules. These include:-
Deeds of variation are a useful inheritance tax (IHT) planning tool because any inheritance from an estate that is redirected to others will be treated as if the deceased made the gift. This means that the person allowing the redirection does not have to survive the gift by seven years in order for it to fall outside of their own estate and therefore not be subject to IHT. A common example would be a child who is to inherit from their parent’s estate. If the child is already financially sound then they may not require the inheritance which would only increase the size of their estate, giving rise to further IHT charges on their own death. In this situation, the child may wish to redirect the inheritance to their own children who could benefit from the money.
A deed of variation could also be used to alter the division of a Will to benefit a charity. Making such a change could potentially attract a lower 36% rate of IHT of the estate that is chargeable which would reduce the IHT bill.
It is important to know that a deed of variation must be made within two years of the date of death. Furthermore, once a deed of variation is signed it cannot be revoked so it is paramount that careful consideration is taken before entering into a deed of variation.
For more information, please contact our Private Client department for expert and professional advice.
Much of the employment law with have in this country comes from the EU, including:- discrimination rights, collective consultation obligations, transfer of undertakings regulations, family leave, working time regulations and duties to agency workers.
Whilst it would now be possible for the UK government to repeal this it is unlikely to do so and in fact EU law will probably continue to significantly influence employment law in this country.
There are various reasons for this:
It is much more likely that the government will gradually modify EU derived employment law to make it more applicable to UK employers and employees than repeal it altogether. As leaving the EU is a two year process nothing will happen quickly.
Once we have left the EU the European Courts of Justice (ECJ) will no longer have jurisdiction over UK courts and decisions made by the ECJ will not be binding on courts in this country. The decisions however already made by UK courts, taking into account EU law and ECJ decisions will remain binding unless it can be shown that the facts in any particular case are materially different. It is likely, however that UK courts will continue to at least consider ECJ decisions where relevant to cases being determined here.
So, in summary nothing drastic is going to happen to employment law as a result of Brexit and certainly not in the short term.
Employment law specialist
Does a Lasting Power of Attorney or a Deputyship Order provide an attorney or deputy with the authority to give away surplus assets of the donor in the hope of achieving an Inheritance Tax saving? In short, the answer is ‘no’.
A recent case in the Court of Protection has highlighted the issue of gifts made by a deputy acting under a Deputyship Order. The case concerned a widow of 92 years, (‘P’), who lived in a care home. Her only daughter had predeceased her and P had inherited the whole of her daughter’s estate. Two relatives were appointed as deputies to manage P’s property and financial affairs.
The deputies applied to the Court of Protection for retrospective authority for various gifts the deputies had made to themselves, their family, and friends. It was found that over £230,000 had been given away (which amounted to 44% of the widow’s estate.)
The Court refused to grant authority for the majority of gifts and the deputies were held to be personally liable to P’s estate for the unauthorised gifts. The deputies’ appointments were also revoked.
The Mental Capacity Act 2005 sets out the powers of an attorney acting under a Lasting Power in relation to gifts. The attorney can only make gifts:
‘Customary occasion’ is defined as:-
(a) the occasion or anniversary of a birth, a marriage or the formation of a civil partnership, or
(b) any other occasion on which presents are customarily given within families or among friends or associates.
Deputies and attorneys should therefore understand that they only have very limited authority to make gifts.An attorney who wants to make gifts for purposes not authorised in the circumstances outlined above must apply to the court for permission.
Be aware that a new National Living Wage will come into force on 1st April this year. Make sure that your staff that are eligible are being paid appropriately.
For workers aged 25 years and over (and not in the first year of an apprenticeship) the National Living Wage this year will be £7.20 per hour, higher than the current minimum wage.
There will be penalties for employers that do not comply.
Our latest employment law newsletter includes the following:
Please click on this link to download a copy of the Employment Law Newsletter Winter 2015
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