Author Archives: Richard Reid

Bad Weather and the Workplace

The weather has been unusually mild so far this winter but as is typical of the UK, it could turn for the worse at any time. The Met Office currently predicts that as we head into the New Year, there is the chance of high pressure becoming established close to the UK, with an increasing chance of some snow showers.

Over the last few winters, spates of bad weather caused major disruption to businesses across the UK; the estimated cost to the UK economy is £230 million per day of disruption.

Pam Sidhu, Head of Employment at Wilkes, advises that employers should have a Bad Weather Policy as part of the usual suite of employment policies in the company handbook, so that employees clearly understand what is expected of them in such circumstances and what the ramifications are if they are unable to attend work due to extreme adverse weather.

Traditionally, there appears to be a culture within much of the UK whereby employees consider such weather events to be an opportunity to take a ‘duvet day’ for which they will receive full salary. However, the fact of the matter is that employees are not automatically entitled to pay if they are unable to get into work due to bad weather.

Pam explains that a sensibly drafted Bad Weather Policy would go some way to dispelling  any myth that employees can take paid time off and provide advance clarification to the workforce as to the employer’s expectations in these circumstances.

The fundamental principle of any such policy would be that in the first instance employees are required to make reasonable efforts to attend work. This may include attending a different office that is more easily accessible.

Employers should also be as flexible as possible in their approach and where possible should consider allowing employees to work remotely from home. This  is becoming more and more feasible nowadays, with the increased use of mobile devices and accessibility of work emails from home computers and laptops. It may also be reasonable to allow employees to take annual leave at short notice or even unpaid leave.

Where an employer feels that the policy is being abused they could introduce disciplinary sanctions to counteract this, where for example it is clear that the employee has failed to make any effort to attend work. The employer will need to be careful to ensure that they are consistent in their approach in this respect.

They will also need to consider the personal circumstances of each employee. Some may live in a very accessible area close to their workplace, whereas others may live some distance away or in more rural locations.

Pam explains that ultimately an employer has a duty of care towards the health and safety of its employees and if through threats of disciplinary sanctions, employees are unreasonably forced to make potentially hazardous journeys then this may expose the employer to risk.

Additionally, it should be noted that employees have the right to reasonable unpaid time off to care for various dependants in emergency situations and not be subjected to any detriment in employment as a result. As such, an employee with young children whose school has closed due to the conditions is likely to be entitled to time off to care for them.

Strictly speaking, the right to time off is unpaid but not all employers will take this approach.  If the employer pays, it is important that it adopts a consistent approach to all staff including those without children.

Pam advises that whilst there will never be a perfect solution to the disruption caused by bad weather to the workplace, good planning and communication by the employer will go some way to alleviating the situation when it does arise.

For advice on any employment related matter please contact Pam Sidhu on 0121 710 5815 or  psidhu@wilkes.co.uk.  You can also reach any member of the Employment Team on 0121 233 4333.

Race Pay Gap: Employers’ Reporting Obligations May Be Extended

The Wilkes Partnership, Employment Law Birmingham Solihull Lisa Moore

A Race Disparity Audit conducted in 2017 found large variations in pay and opportunities between white British people and ethnic minorities. For instance, it was concluded that around 1 in 10 adults from a Black, Pakistani, Bangladeshi or Mixed origin were unemployed compared with 1 in 25 White British adults.

Against this background, the Government are currently in consultation over introducing the compulsory disclosure of information on pay gaps for employees from different ethnic groups. It is hoped that this may improve equal opportunities in the workplace which, in turn, is likely to benefit Britain’s economy. As part of the consultation, which is due to close on 11 January 2019, businesses are able to share their views as to what information should be published.

Lisa Moore of the Wilkes Employment Team comments, “It is anticipated that the extended reporting obligations will operate in a similar way to gender pay gap reporting. Nevertheless, it appears that reporting on race pay will be a more complex exercise and, as things stand, there as a lack of clarity as to what exactly would need to be reported.”

Amongst other things, the consultation raises the following questions:-

  • Which employers will be bound by the new reporting obligations? Whilst it is most likely that this will apply to employers of 250 workers or more, it has previously been suggested that this could be extended to employers with as few as 50 workers.
  • How do employers collect the requisite data? Accurate reporting will require individuals to divulge all necessary information to their employers. Individuals may not, however, wish to engage with the process. Care will also need to be taken by employers in collating such data to comply with any data protection obligations.
  • How will ethnic groups be classified? The Office for National Statistics classifies individuals into 19 distinct groups. Alternatively, 5 more general groups are commonly used, namely, White, Asian, Black, Mixed and Other.
  • What approach will be taken to reporting the data? This could be as simple as producing one figure comparing average hourly earnings of groups of employees or could compare earnings by pay band or quartile.
  • What other contextual information should be disclosed? Specifically, information like age, gender and location of workers is likely to be highly relevant.
  • Will an action plan be required where employers reveal disparities? If the template for gender pay reporting is adopted, there is no obligation for employers to produce any sort of action plan or narrative in relation to the data published.

Lisa Moore comments, “It is commendable that the Government is attempting to target discrimination against ethnic groups in the workplace. However, it remains to be seen if or how any disparities identified will be tackled and therefore if any improvements to equal opportunities are realistic.”

“There is also a question mark as to how accurate and meaningful any data published will be. In particular, the reporting requirement will not identify why certain ethnic groups might not be applying for particular jobs in the first place nor will it account for discrimination that may occur during recruitment processes.”

Please look out for further updates on this topic in due course.

To discuss anything arising from this update, please contact Lisa Moore on 0121 710 5847 or via email at lmoore@wilkes.co.uk. You can also contact any other member of the Employment Team on 0121 233 4333 

The Office Christmas Party – Avoiding More Than Just A Hangover

Christmas Party - Employment Law, Solicitor, Wilkes, Birmingham 

It is almost that time of year again. The traditional Christmas party is an event that is eagerly anticipated in the majority of workplaces. It can take many forms, in or outside the office premises, during or after work time, informal or formal.

It is also an event that can leave participants with more than just a sore head from one too many at the free bar.

Let’s face it, it is the time of year when as well as free flowing booze, often participants can get carried away and end up letting more than just their hair down. One thing that is certain, according to Sarah Begley, Employment Solicitor at The Wilkes Partnership, is that incidents that occur during this time can potentially land the employee and/or employer in trouble. A lot of trouble.

Workplace behaviour and what is deemed acceptable has been closely followed by the media in the wake of high profile scandals allegedly involving the likes of Harvey Weinstein and Sir Philip Green to name just two.

Now is the time for employers to get their house in order. It is important to remember that employment laws apply even where a party takes place off work premises and outside working hours. Employers could be liable for acts of discrimination, harassment, assault or other unwanted conduct by employees.

Whilst most parties pass with no more than a dodgy dance move or two and a fair share of hangovers, employers should bear in mind some simple measures to help the event pass without incident and reduce the potential risk.

Avoiding Discrimination

The first issue for an employer to consider comes in the planning stage of the party.

Arrangements for the party should be non-discriminatory. If the party is away from office premises, the employer should ensure it has suitable access for disabled staff.

Staff of all religions should be considered. Some religions do not celebrate Christmas and employees of those religions may not want to attend the party and should not be pressured to do so or disadvantaged by not doing so.

Additionally, certain religions forbid the drinking of alcohol or the eating of particular foods. Employers therefore need to ensure soft drinks are equally available and the menu options suitably varied where possible, so as to make the event as inclusive as possible.

If there is an over demand for annual leave requests the day following the party, employers should avoid automatically giving priority to those attending the party.

Acceptable Standards of Behaviour

Drink fuelled behaviour is the root cause of many tribunal claims every year. Employers should remind employees prior to the party that they are representing the organisation and set the boundaries in terms of what are acceptable/unacceptable standards of behaviour.

Employers should make clear to employees that any misconduct at the party will be deemed to be misconduct at work, highlighting the fact that disciplinary sanctions may follow if any employees are guilty of inappropriate behaviour.

It is also worth ensuring that the company’s own policies and procedures in this regard are up to date and encourage all staff to familiarise themselves with the policies prior to the party taking place.

Harassment

Remember that employers may be liable for incidents of harassment that take place at work related social events and could face tribunal claims.

Whilst the Christmas party has often been viewed as the opportunity to pursue that office crush, if the feelings are not reciprocated then the recipient of that advance may, with some justification, feel that they have been subjected to harassment.

Fundamentally an employer needs to be aware that they can be vicariously liable for the actions of an employee in this respect, advises Sarah. There are however simple steps an employer can take to mitigate this risk.

There’s no harm, and indeed every benefit, in employers reminding employees of the need to behave and treat each other with respect. An up to date harassment policy, which is brought to the attention of all staff, will also help to reduce the risk of harassment occurring and go some way to protect the employer.

Additionally, employers should investigate any complaints received promptly.

Absence

Finally there comes the morning after the night before.

Where the Christmas party takes place on a working night, there is always the possibility that employees will “pull a sickie” the next day as a result of over-exuberance.

It is a good idea to warn staff in advance that unauthorised absence the day after the Christmas party may result in disciplinary action. To mitigate this risk, employers could encourage employees to book annual leave, subject to maintaining adequate staff levels.

Where an employer has a suspicion that the real reason for unauthorised absence is too much alcohol the night before, they must ensure this is in fact most likely the case before taking any action and apply any sanction consistently in line with other cases.  Failure to do so could potentially result in unsafe disciplinary action.

Ultimately the Christmas party is about rewarding and thanking your staff for their efforts over the preceding year. Following the basic steps above in advance of the party will only serve to enhance everyone’s enjoyment of it.

If you have any query arising from this update, please contact Sarah Begley on 0121 733 4312 or sbegley@wilkes.co.uk or any member of the Employment team.

Wilkes Corporate Team Advise On £3.5m Term Loan Deal

The Wilkes Partnership, Business Lawyer, Corporate Lawyer, Birmingham Solicitor

The Wilkes Partnership has advised Smarts Plumbing Specialists Limited, a leading Midlands-based provider of plumbing and heating services, in raising a £3.5million term loan to support the next phase of growth.

As part of the deal Rick Smyth, Jeremy Parkin and Sana Ikhlaq from the Wilkes Corporate Team worked alongside Roy Farmer & Harvey Austin from Dains Corporate Finance, Sean Brophy & Harry Jeffrey of Caple and Ash Middleton of Close Brothers.

Smarts, based in Heath Hayes, was formed in 1972 by John Smart, and then subsequently acquired by his three sons Alan, Kevin and Chris in 1993.Smarts installs plumbing and central heating systems into new build residential properties and has developed complementary business streams in the areas of maintenance and boiler servicing.

Smarts has longstanding relationships with all of the major national housebuilders including Barratts, Persimmon, Taylor Wimpey and Redrow and prides itself on providing a quality service and high levels of aftercare, thereby maintaining its excellent reputation in the market.

Commenting on the deal, Managing Director Alan Smart said: “The company was formed over 45 years ago by my father John, and me and my brothers continued to develop the business following dad’s retirement.  We are a fiercely proud family-run business with a strong culture and over the years have built a loyal and experienced team who we regard as our extended family.

I am very excited about the future, and myself and my brothers will continue to drive the business forwards whilst developing the management team and bringing them into the ownership of the business.

Alan further commented – “We felt confident throughout the negotiations that Rick and the team were completely on top of the deal and helping to drive the process to completion. We are grateful for their help, expertise and energy.  ”

Commenting on the deal Rick said: “It was a real pleasure working with the team at Smarts. It’s great to be a part of their success story.  We look forward to a continued relationship with Alan and the team during the next phase of the company’s development.”

The deal was the latest in a string of substantial transactions completed by the Corporate team in Q3 – demonstrating the range of expertise that we have at Wilkes to deliver these sorts of transactions.

For help and advice relating to your business get in touch with Rick Smyth on 0121 710 5932 or via email at rsmyth@wilkes.co.uk.

Things To Consider When Selling Your Business

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Selling a business is often the culmination of years of hard work. Most entrepreneurs will only go through this process once and it is important to get it right first time. Here we address the typical questions that owners might ask, when they are thinking about selling up.

What price can I expect? There are different ways of valuing a business. A valuation might be based on underlying profitability or net asset value. The simple fact though, is that a business is only worth what someone will pay for it. The price is a matter for negotiation and the figure you command may well depend on the level of interest in your business. An experienced adviser can make a huge difference here – they can help present your financials in the best light, gauge interest from potential buyers and help you navigate through the negotiations.

When should I sell? The timing will depend on your reasons for selling. You may want to retire, embark on another project or simply cash in on your investment. Whatever motivates you, start planning early. Having a well-considered exit strategy can help you successfully market your business and achieve a better price. Can you demonstrate that the business is on the up? Are profits growing and are there opportunities for expansion? Will the business be able to survive without you? Do you have mangers who will preserve relationships with clients, customers and suppliers long after you have gone? If the business relies on you, a buyer may be less willing to pay all the cash up front. You might be asked to  sign up to an “earn-out” requiring you to stay working in the business to achieve certain profit forecasts that will then dictate the price you ultimately receive.

What preparations do I need to make? Be prepared to get your house in order. A buyer will want to carry out due diligence on your business. They want to understand what they are buying and what risks and liabilities they may be taking on. To secure a good price, you will need to provide healthy financials, detailed information on your staff, properties and assets and evidence of compliance with key legislation. Your advisers can help you prepare this information and present it in the best light. Starting this process early can also help identify issues that need rectifying. You may choose to disclose major issues to the buyer upfront to avoid price chipping later on.

What will the legal process entail? Once you have found a buyer, you will enter into heads of terms. These provide a “route map” for the transaction by setting out the key commercial terms. The buyer will then commence their due diligence. You should make sure the buyer has signed a confidentiality agreement before they begin this process so that they cannot misuse the information you provide. You will then enter into a detailed sale agreement negotiated by your lawyer. The buyer will ask for a series of protections in the sale agreement and your lawyers will be instrumental in helping you ensure that your liability is kept to a minimum and that you cannot be pursued for any claims after the sale.

If you would like to speak to someone about selling your business, please contact Lucy Freeman on 0121 710 5907 or lfreeman@wilkes.co.uk

 

Government Announces Planned Increase in Probate Fees

A week after the budget the Government has announced planned changes to the way that probate fees are calculated. Currently probate fees are set at a flat rate of £215 or a lower rate of £155 if the grant of probate is sourced through a solicitor.

The planned change is for probate fees to be calculated using a banded structure, based on the value of the estate. For some estates, the change will mean no fee is payable. However, this is only the case if the estate is valued below £50,000.

For any estate above £50,000, the proposed changes will result in a higher probate fee. The biggest change will be for those estates values at over £2 million, for which the probate fee will potentially increase from £155 to £6000, an increase of over 3500%.

These changes make careful estate planning even more important. Those individuals concerned about the taxation of their estate, will now also need to consider the impact the value of their estate will have on the probate fee that will be due.

For those individuals who are in the process – or about to begin the process – of obtaining a grant of probate, in relation to a deceased person’s estate, there is an extra time pressure to obtain the grant soon or potentially face a substantially increased fee.

The Wilkes Partnership can help with estate planning for those individuals who are concerned about inheritance tax liability, increased probate fees or both. We can also help those individuals who want to obtain a grant of probate before the probate fee due increases.

Please contact Eleanor Holland at eholland@wilkes.co.uk or 0121 733 8000 if you would like more information or advice.

Unsigned Restrictive Covenants in Employment Contracts May Be Unenforceable

The recent High Court case of Tenon FM Ltd v Cawley [2018] EWHC 1972 (QB) emphasises the importance of having signed employment contracts, in particular, where they contain post-termination restrictions.

Susan Cawley was employed by Tenon in 2008 and worked her way up through the company hierarchy, eventually reaching the position of Operations Director.  In 2011 she had been given a new employment contract which contained more onerous restrictions than her original contract.  A further contract was also issued in 2012 containing identical restrictions.

After Ms Cawley resigned in May 2018, Tenon discovered that she had attempted to persuade a colleague to join her future employer and so it sought an interim injunction in the High Court to enforce the post-termination restrictions against her.

Despite searching, Tenon was unable to find signed copies of any of the contracts.  Ms Cawley gave evidence that this was because she had refused to sign them because she did not agree to the post termination restrictions they contained.

The High Court had to decide whether Tenon had established that there was a serious issue to be tried and whether they were likely to succeed at the final trial in establishing that the restrictive covenants actually applied to Ms Cawley.

His Honour Judge Bidder QC considered that Tenon fell at the first hurdle because it could not demonstrate that there was a signed contract or that it had provided any valuable consideration for the more onerous restrictive covenants in the later contracts.  He thought it remarkable that a large organisation such as Tenon, with an HR department and an experienced HR manager (who had since left the company), could not locate even one signed copy of Ms Cawley’s employment contract.  He also criticised Tenon’s failure to contact the former HR manager to give evidence to rebut Ms Cawley’s version of events.

He took into account that acceptance of the terms of a contract can be inferred from conduct, but the case law relied upon by Tenon suggested that it was only possible to infer an employee’s agreement to changes by continuing to work where those changes have immediate effect.  In this case, the changes would only take effect after Ms Cawley’s employment had ended.  He also noted that the 2011 and 2012 contracts expressly stated that they were effective from signature, suggesting that they were not binding if unsigned.

The judge further rejected Tenon’s argument that their agreement to continue employing Ms Cawley could be effective consideration for the new restrictions, because there was no authority for such an argument, particularly where the restrictions were more onerous.

Tenon’s costs in the proceedings were £200,000, a sum that in the view of the judge was ‘completely disproportionate’.  Tenon’s aggressive conduct in pursuing the application was a further factor in not granting the injunctive relief.  Therefore, this was not only an unsuccessful exercise for the employer, but an extremely expensive one.

Conclusions

Pam Sidhu comments:Employers need to ensure that employment contracts are signed by all employees, but especially by senior employees who are more likely to be able to cause damage to the business if they leave, because it will not be easy to persuade a court to enforce restrictions in a contract that has not been signed by an employee.  If a business attempts to introduce new post-termination restrictions during employment, it must also provide adequate consideration for the employee’s agreement to enter into them and ensure that it retains evidence of such consideration.

Businesses should also make sure that all employees at a similar level have post termination restrictions in their contracts because a lack of consistency could undermine the employer’s argument that it has a legitimate business interest to protect.

For advice on any employment related matter please contact Pam Sidhu on 0121 710 5815 or  psidhu@wilkes.co.uk.  You can also reach any member of the Employment Team on 0121 233 4333.

Employment Tribunal Fee Scrap Leads To Significant Claims Increase

The Wilkes Partnership Solicitors, Birmingham, Solihull, Supreme Court

Recent Ministry of Justice figures show a huge increase in the number of Employment Tribunal claims received, compared with the same period in 2017.

In September 2018 the MoJ published quarterly statistics for the period April to June 2018, showing a continuing trend for increasing numbers of tribunal claims. Compared against the same quarter in 2017, the number of single claims received increased by a startling 165%.

This follows on from the Supreme Court decision in July 2017 that fees in Employment Tribunals were unlawful, leading to their abolition. Since the introduction of fees in July 2013, there had been a sharp decline in the number of claims. As expected, the latest figures show this trend is now firmly in reverse.

In July 2018 ACAS published its report for 2017/18. Sir Brendan Barber, ACAS Chair, said, “The number of people deciding to pursue a tribunal claim has definitely increased since the Supreme Court decision to scrap fees. Our annual report shows that demand for our early conciliation service increased by nearly 20% and there’s been an almost 40% jump in ACAS cases that involve tribunal claims compared to the same period the previous year.”

Increased Employment Tribunal claims putting strain on dwindling resources

However, the MoJ figures also show that the outstanding caseload has increased by 130% compared with the same quarter last year.  Following the introduction of fees, tribunal staff and judicial resource was allowed to dwindle. Now that claims are once more on the rise, users are feeling the effects of this, with long delays in dealing with correspondence and hearings sometimes being listed 12 – 18 months away. For businesses and employees involved in legal action, this is far too long a wait.

The future of Employment Tribunal Claims

To reverse this reduction in service, an exercise to recruit additional Employment Judges in England and Wales has begun across the 10 regions, with the equivalent of 54 full time judges being recruited.  That process is expected to conclude by January 2019, with the new crop of judges expected to commence work in around April 2019.

Lisa Moore comments:The latest figures continue to demonstrate that current and former employees are now far more likely to issue a claim (and use the services of ACAS as a precursor to doing so). This emphasises the importance of businesses having proper policies and procedures in place, to help manage employee expectations and protect against successful claims, as well as acting correctly when difficult situations arise and taking advice.

For advice on any employment related matter please contact Lisa Moore on 0121 710 5847 or  lmoore@wilkes.co.uk.  You can also reach any member of the Employment Team on 0121 233 4333.

Wilkes urge Midlands Firms to Ditch Secret Santa for KidsOut 2018 Giving Tree appeal

The Wilkes Partnership, Business, Law, Solicitors, Birmingham City Centre, CSR

 

Once again this Xmas, Wilkes staff are swapping novelty mugs and reindeer antlers to buy real toys for deprived children in the region – and are urging all Midlands firms to join in.

Rick Smyth, Corporate Partner at Wilkes and co-chair of KidsOut in the Midlands said “In 2017, Midlands companies generated the lion’s share of the 41,000 toys bought nationally as part of the Giving Tree appeal. That is something we, as a region, should be immensely proud of. We hope everyone will sign up their team or firm this year – and help “turn some frowns upside down.””

Gordon Moulds, CEO of KidsOut comments, “Our aim is to ensure that every child in refuge has at least some joy at Christmas, especially during a time of crisis. The Giving Tree appeal is central to us being able to deliver on this goal”. 

Rick added ”It’s so simple to help. Sign up on the website for enough tags for you, your team or even your whole firm. Hang them on your office Xmas tree (or notice board) and people can take them and buy the toys. There are lots of local drop off points and Kids Out do the rest. Easy – yet life changing. What’s not to like?”

To sign up go to: – http://www.kidsout.org.uk/how-companies-can-help/giving-tree/

You can also contact the KidsOut Fundraising team on 01525 243215 to arrange for a delivery of tags, or to make a donation directly.

Apprentice Of The Year Nominee Talks About Her Journey So Far

 

The last four years have been an absolute rollercoaster. Moving on from my legal secretary role at The Wilkes Partnership, I started my legal apprenticeship with the firm and now, three years later, I have been nominated for the Solihull Chamber Apprentice of the Year Award.

It hasn’t been easy by any stretch of the imagination, but as with any opportunity like this it never is. However the hard work has definitely been worth it. My experience just shows that whatever career route we take, we just need an opportunity to fulfil our aspirations and, have the support to achieve it.

For me, the nomination I received in September was my biggest achievement. It wasn’t something I expected to get but it was something I had worked hard for.

My own career path started differently to most that choose to be a solicitor. When most of my peers were going to study at university, I didn’t have that opportunity due to reasons outside of education.

However, that didn’t put an end to my own aspirations of working in the legal profession, and at the age of 18, I successfully applied for a trainee legal secretary role at The Wilkes Partnership.

Following a year working with the firm, I had gained confidence in my role and had picked up a greater understanding of the workload, rather than just the theory, and when I was asked if I wanted to join the apprenticeship scheme, I grasped the opportunity with both hands. Guided by Audrey Price, and with Sarah Begley and Jas Dubb mentoring me, I soon saw for myself why the scheme has such a good reputation within the legal sector and the region. And knowing that our senior partner Nigel Wood was trained at The Wilkes Partnership, is proof that the firm really does want to invest in talent.

Four years on, and I have experience in a range of practice areas including property, residential, employment, insolvency and M&A across both the Shirley and city centre offices. The time spent in these fields has helped me decide that I want to specialise in employment law – its people-centric approach really appeals to me. I am not convinced I would have been able to get a real feel for which practice area to focus on if it wasn’t for the hands-on training and face-to-face client time that I have had on the scheme.

The culture of the firm is to boost your confidence by trusting you to do the work with adequate supervision. It’s a fast-paced environment, and I’ve continually learned new skills.  That said, if there are moments where I’ve needed help, then Jas has always been there to offer advice – even when the office is at its busiest.

Even though I have only been an apprentice for three years, there have been many high points, and they keep on coming. From the moment I got onto the apprenticeship scheme, to this nomination, The Wilkes Partnership has supported me.

I still have three years to go on my apprenticeship, and am relishing taking all the opportunities presented to me.   The firm has given me the chance to realise my dream – and for that I plan to be here for years to come fulfilling my aspirations to become a solicitor in my chosen field.

If you would like to find out more about working at Wilkes please contact recruitment@wilkes.co.uk

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