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SMEs – Employment Law Pitfalls

The Forum of Private Business recently warned businesses of the risk of ignoring employment law issues.

Small to medium sized businesses face the following problems on a regular basis -

·         How to deal with employees who are not performing

·         How to deal with employees on long term sick leave

·         How to restructure the workforce by way of redundancy

What are the current issues facing SME?

(1)    Flexible working & shared leave –

Flexible working has progressed from requesting flexible leave from women returning from maternity leave to a formal right to request flexible working for working parents and carers. This will be further extended to cover all employees (effective from 30th June 2014).

Shared parental leave will take effect in April 2015 allowing parents to share up to 52 weeks leave between them when a child is born or adopted.

Employment law is procedurally driven and demands a paper trail. Always keep records and seek legal advice before taking action.

(2)    Mental Health & Disability –

SMEs have difficulty in dealing with the following issues –

·         How can affected employees be assisted?

·         What is the business expected to do?

·         What level of tolerance is needed if behaviour or absence is below the acceptable standard?

Again, procedures need to be followed and contemporaneous records should be kept.

(3)    Tribunals

The government have introduced tribunal fees for litigants which have resulted in an initial drop in claims of 79%. Undoubtedly this will level out. There has been in an increase in the qualifying service to bring an unfair dismissal claim from 1 to 2 years. There is also now a cap on the maximum claim for compensation for unfair dismissal which is either the lower of one year’s basic pay or the statutory maximum of £76,574.

So, how  can SMEs deal with their employees effectively?

SMEs should seek good value legal advice to arm them with the basic tools in relation to

·         Disciplinary & grievance hearings

·         Contracts and staff handbooks

·         Employee training

What  should SMEs do to ensure that they are compliant?

SMEs should –

·         Review policies and procedures

·         Address training need in respect of flexible working rights and other areas for managers

·         Review how to armour the business against claims from leavers.”

Those who have not made a will risk leaving a complicated financial situation for family members when they die the Law Society has warned, following the publishing of research by the Dying Matters Coalition showing two out of three British adults have not made a will. Law Society president Nicholas Fluck has said he hopes the new figures will encourage people 'to be more open about their wishes after death'.

MEET THE PROFESSIONALS – 16th May 2014 between 10.30am to 12.30am – IVYBRIDGE WATERMARK

A free community resource supported by Ivybridge Library and Ivybridge Town Council. 

Come down to speak to a solicitor, accountant and/or IFA for free. Businesses and private individuals very welcome

Kernow Rules! 

The Cornish have been declared by the Government to be a national minority under the European Framework Convention for the Protection of National Minorities. 

Although, the Government have stated that it is without prejudice to whether or not the Cornish are a "racial group" under the Equality Act 2010.

However, the Equality Act protects against race discrimination. Race can cover nationality and national origins.

The case of Mandla v Lee [1983] (pre-Equality Act 2010) the Court defines a "racial group" as, inter alia: 

(a) a distinct community by reason of certain characteristics;

(b) having a long shared history and a cultural tradition of its own;

(c) originating from a common geographical origin;

(d) speaking a common language; 

(e) possessing a common literature;

(f) holding a sufficient combination of shared customs, beliefs and traditions deriving from a common or presumed common past; &

(g) sharing a historically determined and distinct social identity.

The Framework Convention for the Protection of National Minorities requires parties to protect the essential elements of the minorities identity (religion, language, traditions & cultural heritage) as well as the right to use his or her minority language in private and in public. 

Therefore, discrimination claims could be based on a claimant being Cornish.

A glorious night at the Plymouth Law Society Quiz yesterday evening. Thank you to all who took part. The Graylingitises came 10th and scooped the best name prize whereas The Badgers* claimed the Wooden Spoon!

Howard & Over Solicitors in Plymstock are proudly supporting St Luke's Hospice Plymouth "Make A Will Week" - 19-23 May 2014. 

The St Luke's Hospice Plymouth Make A Will Week will run from Monday 19 to Friday 23 May 2014. Howard & Over Solicitors will give their time free of charge to update or write Wills, in return for a donation to the Hospice. 

This is an excellent opportunity to get your affairs in order, whilst also helping to support the patients and families cared for and supported by St Luke's Hospice. 

HOW TO TAKE PART - Simply contact Howard & Over Solicitors on 01752 556606 and make an appointment between 19 and 23 May, making sure you quote "St Luke's Hospice Make a Will Week".

Visit or telephone 01752 492626 for further information.

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But taking Legal Action can be Expensive

There are various ways of funding your case. You may already have legal expenses cover through your household or motor insurers and this may meet the cost of pursuing your claim. Alternatively if you are a member of a Trade Union they may be prepared to fund your case.

If you do not have any of the above you can pay the legal costs yourself as the case progresses. However most of our clients prefer to fund the case by way of a Conditional Fee Agreement, often known as a "no win no fee" agreement.

No Win, No Fee

We can look at dealing with your personal injury cases under a Conditional Fee Agreement. This means that if you win your case you must pay our costs but you should be able to get the majority of your costs paid by your opponents. If you lose, you pay nothing.

We recommend that the agreement is backed by insurance and our Personal Injury Specialist will discuss this with you in more detail during your first appointment.

What next?

We would be pleased to discuss any possible claim with you. If your claim has a reasonable chance of success we will be happy to represent you and we will guide you through the whole process.

We have offices in Devonport, Plymstock and Ivybridge and we are happy to see you at the office which is most convenient to you.

In the event that you cannot travel to one of our offices due to your injuries we may be able to visit you at home.

Is there anything I need to worry about before putting my business premises on the market?

Yes, unfortunately there are quite a few things you need to consider before placing your business on the open market if you hope to achieve a successful sale. Some requirements, like the Energy Performance Certificate, are needed before any businesses premises can even be marketed. But there are other matters, which most small business owners do not discover until the transaction is all ready underway, leading to unfortunate and avoidable delays. For example:

a. Apportionments – How are you going to apportion the sale e.g. between Goodwill, Property and Fixtures and Fittings? This should be considered carefully as the apportionment will have Tax consequences.

b. Asbestos Survey – this is a legal requirement under the Control of Asbestos at Work Regulations 2002. A lot of small businesses owners are unaware of the obligation until a potential buyer’s solicitors ask to see the report.

c. Fire Risk Assessment – this is also a legal obligation that some business owners are not aware of until it threatens to slow down a transaction.

Even when a buyer has been found there are certain matters which should be considered right at the start of the transaction to prevent delay. For example:

Planning Permission – what if your potential buyer intends to change the use of the premises? It can take at least eight weeks to obtain planning consent for change of use, and in a buyer’s market this is as much of a concern for the seller as it is for the buyer and could result in the transaction falling through. These matters should be discussed right at the start of a transaction. 

I’m entering into a new lease of business premises, what are the things I need to look out for?

There are lots of important aspects to a business lease that may not come to light until some years after the transaction has completed, and when the consequences could have a severe impact on your business, some of these are as follows:

a. Rent – you need to check if VAT is included or excluded, the frequency and type of rent reviews. Is there any rent-free period? Is a rent deposit required?

b. Term – is it suitable for your business needs? If it is too short, you may find you’re forced to look for new business premises. If you have just started a new business venture, you may not be ready to tie yourself to a long-term liability.

c. Break Clauses – who is the break clause in favour of? It may be in favour of the Landlord and what appeared to be a ten-year term could be terminated after only three years.

d. Assignment – Can you assign the lease, and if so are there any conditions? e.g. Do you need to sign a personal guarantee? Do you need the Landlord’s consent?

e. Repairing/Insuring – who is responsible and how extensive are the obligations? You do not want to find yourselves entering into a lease of a premises which is in a poor state of repair, to find yourself with the inconvenience and expense of extensive remedial work because of your repairing obligations or a failure to agree a Schedule of Condition.

Note: This analysis may contain information of general interest about current legal issues, but does not give legal advice.

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