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Open the floodgates - employment issues arising from the recent floods & severe weather -

Normally absence in severe weather conditions is considered to be an unauthorised absence. However, employers need to tread very carefully.

Should you paid for an employee's absence due to the weather? No, unless you decide to pay the employee or his/her contract provides for a payment to be made. 

Can I dismiss or discipline an absent employee due to weather conditions? It will depend on the circumstances of the absence. However, if an employee is trying to prevent their homes from being flooded a dismissal or disciplinary sanction is likely to be unfair. Was their absence genuinely caused by the weather? Was it reasonable for them not to attend work? How long did the period of absence last? What was the effect on the business? 

Even if a business is incapacitated by the weather you will still need to pay your employees. If your contracts of employment allow for lay off then you may be able to tell employees to stay away from work without pay (statutory guarantee payments will still apply). In the absence of a lay-off clause such action would be a breach of contract leading to unfair constructive dismissal and unlawful deduction from wages claims. 

You could ask your employees to take their annual leave, however you would need to take into account the minimum notice period required under the law to require them to take the legal. Also, there may be issues as to breaching "mutual trust and confidence" which in turn to lead to an unfair constructive dismissal claim. 

In summary, you should examine your contractual documentation to see what processes are in place to ensure that you are well prepared to deal with such an emergency. If in doubt seek legal advice.

Currently married couples and civil partners can make agreements pre or post marriage or civil partnership but they may not be upheld by a court when coming to the division of their assets.

The law may be about to change to ensure that pre and post nuptial agreements are legal binding in the future….  but for now speak to one of our specialist family team and make sure your Will reflects your wishes

Did you know that only approximately 12% of people remember a charity in their Will according to research by Foresters. 

The most popular being Cancer charities and as a nation of pet lovers, animal charities are the second most popular. 

Howard and Over @ Plymstock are taking part in this years St Lukes Free Will week 

.... who is dealing with your affairs - always use a fully insured and regulated specialist solicitor

Frustration of Contract - Ill health dismissals - if an employee is on long term sick leave can an employer simply dismiss as it would be impossible for that employee to perform their contractual obligations? Yes, however it comes with a risk. 

Normally, an employment contract comes to an immediate end under the law of frustration if the employee is imprisoned as he/she cannot physically perform their duties. However, long term illness requires very careful consideration. 

Under the Equality Act 2010, disability is a "protected characteristic". In plain English this simply means that you will need to consider whether reasonable adjustments need to be made to allow the employee to return to work. An employee on long term sick leave, for example longer than a year, may be disabled. If you terminated their employment on the grounds of frustration then you could face a claim for dismissal on grounds of disability discrimination. 

An added risk arises with employees who have more than 2 years' qualifying service (or 1 year for employees employed before 6th April 2012). If you are not successful in arguing frustration of employment contract in the tribunal then you may be left without a defence for unfair dismissal. It is an "all-or-nothing" approach.

You should always seek legal advice before taking action to avoid problems at a later stage. However, there are ways in which you can resolve a long-term sickness issue.

Fire & Forget - dismissal without tears - 

Employers can fret about dismissing an employee. However, you can terminate employment legally whilst minimising risk. 

Employees who commenced employment after 6th April 12 require two years' continuous employment service to bring a claim. However, all employees have "Day One Rights" that commence on employment (and in some cases before!). These rights relate to discrimination claims (age, sex, race, disability, etc) as well as dismissal related to health & safety concerns, whistleblowing and being involved in trade union activities. 

For an employee with less than 2 years' service you need to clear that no Day One Rights claims exist. It is advisable to take legal advice before acting. Always confirm your decision to the affected employee in writing. 

For an employee with more than 2 years' service you will need to have a fair reason to dismiss and follow a fair procedure to avoid an unfair dismissal claim. 

If there is an existing dispute you can have a "without prejudice" conversation as part of a genuine attempt to resolve a dispute. This may render the conversation inadmissible in later proceedings. 

On 29th July 2013 the law introduced "protected conversations". However, their effectiveness is limited as any indication of discrimination claims could enable the entire discussion to become admissible in law. 

Settlement Agreements offered as part of "without prejudice" conversations coupled with "protected conversations" could be the best way forward as a financial settlement can be presented with a legally binding requirement not to sue the employer for any claims arising from his/her employment. 

The secret to the whole process is to take advice before acting. This way you minimise your risk of a claim and make the procedure less daunting and more manageable.

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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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