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Unfair Dismissal, Wrongful Dismissal and Discrimination

Dismissal – Key Issues to Consider

Employers must take great care to act fairly and lawfully when dismissing employees to reduce the risk of a claim being made at the Employment Tribunal.

The five potentially fair reasons for dismissal:

Conduct. This could be a single act of misconduct or a series of less serious acts

Capability or qualifications. This includes poor performance, ill-health and formal qualifications

Redundancy. This includes workplace closure, business closure, or reduced need for employees

Illegality. Where continuing to employ the employee in the position they hold would contravene a statutory restriction (for example, because of their immigration status)

‘Some other substantial reason’. This is a catch-all category of other potentially fair reasons.

If the employer does not have one of these reasons then the dismissal will be unfair even if a fair procedure is adopted. Once the employer has established one of these reasons it must act reasonably, and be seen to do so, before dismissing an employee.

The employer must follow a fair procedure.

Even if there is a potentially fair reason for dismissing an employee, an employer must still follow an appropriate fair procedure before deciding whether to dismiss. This means that it has carry out a proper investigation, consider alternative penalties, act consistently (by reference to how it has dealt with similar incidents) and generally act reasonably and fairly.

The employer must act reasonably in treating the reason for dismissal as sufficient to dismiss.

Even if there is a potentially fair reason for the dismissal and the employer has followed a fair procedure, the employer must also act reasonably in treating that reason as a sufficient reason for dismissal.

The employee should be dismissed in accordance with their contract.

Employees generally have a right to be given a period of notice (or, depending on their contract, a payment in lieu of notice if their employment is terminated). Employers must not base the dismissal on a reason that is discriminatory. An employer must not base a dismissal on a reason that is directly or indirectly discriminatory based on a protected characteristic, and must not discriminate against an employee during the dismissal process

Restrictive covenants and wrongful dismissal

Dismissing in a manner that breaches an employee’s contract is likely to lose the employer the benefit of any contractual rights, such as post employment restrictions preventing the employee working for a competitor. It would also result in the employee having a claim for wrongful dismissal.

Sometimes, from both a practical and commercial point of view, it is better to try to reach a financial agreement with an employee to leave. There are risks in proposing such a solution, so it is advisable to take legal advice before entering into any negotiations.

Qualifying periods

Generally, employees must have completed a qualifying period of two years’ continuous employment before they can bring a claim for unfair dismissal, although there are exceptions (for equality and/or discrimination claims).

Sometimes, from both a practical and commercial point of view, it is better to try to reach a financial agreement with an employee to ensure that they do not take any further action as a result of the termination of their employment. It is advisable that employers take legal advice before entering into any negotiations, and that a formal settlement agreement is signed by the parties.

For advice on all employment law issues, contact Paul Owen: 01488 683555 or email powen@dhc-solicitors.co.uk

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Terms and Conditions

The importance of good Terms and Conditions

Written terms and conditions protect your business, and enable two parties (e.g. customer and supplier, or joint venture partners) to understand their rights, duties and responsibilities in relation to a business deal. Well drafted terms and conditions should provide complete clarity for both parties on what should happen in a given situation, and avoid uncertainty and misunderstandings which can lead to unnecessary dispute.

You should consider including the following provisions when preparing terms and conditions for your business:

• A clear definition of the products, services or digital content to be provided

• Payment terms (including the right to charge interest for late payment)

• Delivery timeframes

• Guarantees or warranties

• Setting out what happens if either party is in breach of the agreement

• The duration of the agreement and the notice required from each party to end the agreement

• The law governing the contract

Consumer rules and guidance

There is extensive legislation to protect consumers (in particular the Consumer Rights Act 2015) which:

• Implies terms into contracts with consumers, giving consumers rights and remedies in respect of their purchases of goods, services and digital content.

• Requires that consumers are given certain minimum information before a contract is formed.

• Gives consumers entering into distance contracts for most goods, services and digital content a cooling off period, in which they can cancel penalty-free.

• Requires that any terms used in a consumer contract must be “fair”.

• Prohibits misleading and aggressive sales practices by the trader generally, both in advertising and marketing and in the terms themselves.

Generally the trader cannot contract out of its obligations or exclude or (unreasonably) limit its liability for their breach. Terms and conditions which attempt to do so will be unenforceable and their use may in itself be a breach of consumer protection law

Business-to-Business rules and
guidance

A trader’s dealings with business customers are far less strictly controlled than their dealings with consumers. Legislation and common law rules imply certain terms into contracts for the sale of goods and services between businesses, however in many cases these implied terms may be varied or excluded provided that it is reasonable to do so.

The important parts of standard terms are driven by purely commercial decisions and the business’s operating

procedure, for instance, payment terms or how delivery is to be effected. In particular, if the standard terms incorporate technical specifications, care must be taken to ensure that these specifications comply with the business’s standard terms

Incorporation of terms and conditions

A business’s standard terms and conditions will only be effective if they have been properly incorporated into a contract. Ideally they should be set out or expressly referred to in a contract that both parties sign. The next best option is for a business to bring its standard terms to the attention of the other party at the earliest possible opportunity in as much pre-contract and contract documentation as possible (this will also help in the event of a battle of the forms when two businesses are negotiating the terms of a contract and each party wants to contract on the basis of its own terms). This would include setting out the standard terms on the business’s website, brochures, purchase order forms, quotation acceptances and, if a course of dealing has arisen between the parties, on invoices and delivery notes.

Finally, when introducing new standard terms, a copy should be sent to every customer or every supplier stating that the new terms will apply in the future.

For assistance in preparing terms and conditions for your business, contact Charlotte Grew: 01488 683555 or cgrew@dhc-solicitors.co.uk

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What to do when someone dies

There are many matters which require consideration at this difficult time. This summary is to assist you in dealing with the first steps.

Immediate steps:

  1. Register the death at the register office – 01635 279230 (West Berkshire) or 0300 003 4569 (Wiltshire)
  2. Find out if there were any specific wishes about funeral arrangements (this may be in the Will);
  3. Organise the funeral;
  4. Notify friends, relatives and employers / employees
  5. Put notice in the newspaper.

Practical Matters:

  1. Cancel all deliveries (papers etc.);
  2. Remove valuables from his/her home;
  3. Redirect mail;
  4. Inform the building, contents and car (if appropriate) insurers;
  5. Arrange for the immediate welfare of any pets. The Deceased may have provided for their long term care in his/her Will

Collect the following information:

  1. The Will;
  2. National Insurance Number, tax office and reference number;
  3. Date and place of birth, and date and place of marriage or civil partnership.
Will, Personal attorney in Berkshire

Notify:

  1. The executor of the Will, and if there is no Will, an administrator of the estate will need to be appointed in accordance with the probate rules;
  2. If you need any help speak to a solicitor

Contact in due course:

  1. Banks and building societies;
  2. Department for Work and Pensions if receiving any benefits;
  3. Pension providers;
  4. Solicitor and accountant
  5. Deceased’s tax office;
  6. Landlord if deceased lived in rented property;
  7. Local authority – council tax, parking permit or if a blue badge was held for disabled parking;
  8. Care providers (Social Services or private provider);
  9. Insurance companies: travel, private health care, etc;
  10. Life insurance companies;
  11. Mortgage provider;
  12. H.P. or loan companies, credit and store card providers;
  13. Utility companies – water, electricity, gas and phone;
  14. TV/Internet providers;
  15. DVLA and passport office;
  16. Clubs and associations;
  17. Dentist or other healthcare providers;
  18. Creditors – anyone they owed money to;
  19. Debtors – anyone who owed them money;
  20. Digital account providers – email, social media, Amazon,
    eBay etc.

A solicitor can assist in notifying all the relevant organisations and obtaining the information required to apply for the Grant of Probate. Don’t forget, we are here to help as much as you would like.

Download this resource as a pdf

To discuss this and to obtain more information contact:
Emily Payne at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

Trusts explained

What is a trust?

In principle, trusts are a simple concept. They are a private legal arrangement where the ownership of someone’s assets is transferred to someone else to look after and use to benefit a third party.

The person giving the assets is usually called a “settlor” (or “testator” if it is done by Will). The people asked to look after the assets are called “trustees”, and the person benefitting is the “beneficiary”.

The distinctive feature of a trust is the separation of legal and beneficial ownership of the asset(s) involved. The trustees legally own the asset, but they must always put the interests of the beneficiary above their own. The settlor can be a trustee, but they must still act in the interests of the beneficiary, not themselves.

Trusts can take effect during the settlor’s lifetime or within their Will.

Why use a trust?

Trusts are very common in everyday life and most of us will come into contact with them at some point. Company pension schemes, for example, are usually structured as trusts, and trusts are commonly used for charitable funding.

For most people however, the type of trust they are most likely to come across personally is a trust established for managing their family’s finances.

Some common situations are:

• To provide for a husband or wife after death while protecting the interests of children in the long term;

• To protect the inheritance of young children until they are old enough to take responsibility themselves;

• To provide for vulnerable relatives who need support to look after their affairs;

• To help succession planning in family businesses.

Trusts are particularly useful when planning how money and assets should pass from one generation to another, especially when there are divorces or second marriages involved.

Are trusts secret?

Trusts are personal arrangements, and most people expect them to be kept confidential. Quite often, even beneficiaries of a trust may not be aware of it, possibly because a parent would prefer their children not to know that they are at some point going to receive benefits from it. Recognising this, there is no requirement to register a trust or to publish the names of the parties involved. However the tax authorities will generally need to be informed of the establishment of a trust and any suspicious activities should be reported and investigated, so trusts are not regarded as “secret”, but their confidentiality is generally preserved.

Trusts and Tax

Trusts are often represented as being vehicles to avoid tax. In reality, there are virtually no circumstances in which anyone would be advised to set up a trust to gain tax advantages. In setting up a trust, the settlor is giving up ownership of the asset and such a dramatic move only normally makes sense if the settlor has clear objectives for this, and tax is likely to be a secondary issue.

Any tax advantages given to trusts are tightly targeted by tax authorities to those seen as doing social good, such as charitable trusts or those benefitting a vulnerable relative. Even then the rules are policed closely. Most other trusts attract few tax advantages.

The official position in the UK is that trusts are tax-neutral, although many professionals now think that the UK system penalises some types of trust. In line with the official policy, trustees must give HM Revenue full details when a trust is established and are generally personally liable for the taxes due on the trust.

Seek Advice

Anyone considering a trust, whether during your lifetime or in your will, is advised to seek professional assistance, to ensure that all options are considered and that the trust is suitable for you and meets your requirements. The tax consequences of the trust should be discussed in full so that you are fully appraised of your position.

Download this resource as a pdf

To discuss this and to obtain more information contact:
Emily Payne at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

Providing for someone with a learning disability

Someone signing a will - Legal advice to help you provide for someone with learning difficulties

If you leave money to a relative or friend with a learning disability, or die without making a will, it could have unintended consequences.

  • If your relative or friend cannot manage their own money, the Court of Protection may need to become involved to assist in looking after the legacy. This can be complex and time consuming, and there are fees involved.
  • The person with a learning disability may have impaired understanding of the value of money and may be vulnerable to other people taking advantage of their new found wealth.
  • If the person concerned is receiving state benefits, the receipt of a legacy is likely to affect the amount to which they are entitled. Most benefits are subject to the person holding less than a statutory maximum of capital.

You may think of leaving your estate to your other children to use to help your child with a learning disability, but that may not be an appropriate solution, as there is no legal obligation on them to use it in that way, and the money might be treated as their money if they were to divorce, or go bankrupt, or die, or if they needed to claim benefits themselves.

Discretionary Trusts

The solution is to set up a Discretionary Trust within your will. You will appoint trustees who will support the person concerned to manage money and to make decisions as to how it should be used. The trust fund can be used to provide luxuries and additions to the person’s day to day needs, as well as having the flexibility to benefit other members of the family if needed.

Contact Us

A Will like this should be made by a solicitor who has experience of these types of wills. A Will is vitally important, particularly in these circumstances, and you should consider all the options with your solicitor who will write a will to suit you.



Typical Example

Mr and Mrs Smith have three children, Adam, Ben (who is autistic) and Charlotte.

Mr Smith dies first and leaves everything to his wife.

Mrs Smith dies later and leaves 1/3 of her estate to Adam, and 1/3 of her estate to Charlotte. The other 1/3 of her estate is to go into a Discretionary Trust to benefit Ben. The Trustees will be people Mrs Smith trusts completely. This could be Adam, Charlotte, and or brothers, sisters or family friends, or a professional. The trustees can use the money to help Ben in any way they think fit, and it will not necessarily affect his benefits. When Ben dies (if all the money has not been used up) it can go to Adam, Charlotte or the grandchildren.

The money can be used to pay for luxuries and extras to improve Ben’s life, e.g. holidays, outings, music and visual or computer equipment, anything which he would not otherwise have.



Download this resource as a pdf

To discuss this and to obtain more information contact:
Emily Payne at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

Lasting Powers of Attorney

Berkshire solicitors, a person signing a document giving someone lasting powers of attorney

A Lasting Power of Attorney (“LPA”) allows you to appoint an attorney to look after your affairs if you become incapable of doing so. It can only be made in advance, by a person who is still capable of making decisions.

Why make a Lasting Power of Attorney?

If no provision is made, and you lose capacity to make decisions for yourself, there would be no-one with legal authority to manage your affairs. The person wanting to help you with this task would have to apply to the Court of Protection for a deputyship order. Whilst we are happy to assist with this, it is a time-consuming and expensive process, and means that your appointee can do nothing until a Court Order is made. The person wishing to be appointed may not be the one you would have chosen!

If an attorney has been appointed in advance, and the document registered, they may carry out your wishes and act on your behalf without delay or further formality.

A Lasting Power of Attorney also helps relieve those close to you of responsibility for trying to guess what you would have wanted, and will help in the situation of there being conflicting views within a family, or indifference, as to the best way to care for you if you are unable to look after yourself.

What is a Lasting Power of Attorney?

The Lasting Power of Attorney is a legal document which allows decision making to be delegated to your chosen attorney or attorneys, so that they can make decisions for you when you are unable to do so. attorney or attorneys, so that they can make decisions for you when you are unable to do so.

There are two types of Lasting Powers of Attorney:-

1. Property and Financial Affairs Lasting Powers of Attorney

A Property and Financial Affairs LPA enables your attorney to manage and sell your property, manage your bank accounts and investments, and pay bills on your behalf.

2. Health and Welfare Lasting Powers of Attorney

A Health and Welfare LPA enables you to set out how you want to be cared for if you lose your mental capacity. It covers medical treatment, where you live, what sort of care you receive, and day-to-day decisions about your welfare.

How do I make a Lasting Power of Attorney?

We will go through the forms with you and help you to decide what type of power of attorney is right for you, and the conditions you wish to place on it. When the Powers are created, an independent person has to certify that you are signing it of your own free will and that you understand what you are doing. We can do this if appropriate. In some circumstances, a Doctor may be asked to certify the LPA.

The LPA then has to be registered with the Office of the Public Guardian before it can be used, even if the donor (the person making the LPA) still has mental capacity. As part of the registration process, at least one person can be notified of the LPA so that they can raise any concerns with the OPG. The registration process takes between 6 and 16 weeks, depending on the workload of the Office of the Public Guardian, so we recommend registering straight away, so that the LPA is available to be used as soon as it is needed.

Download this resource as a pdf

To discuss this and to obtain more information contact:
Emily Payne at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555