The work environment has received a seismic blow as the UK and the rest of the world have grappled with the COVID-19 pandemic. The political measures put in place to deal with the pandemic have had a dramatic effect on the economy and the employment landscape. Jas Dubb, an Associate solicitor in the Employment Team at The Wilkes Partnership, looks at one aspect of fallout from Covid-19: employment tribunal claims are on the rise.

Jas says: “Data recently published for the Employment Tribunal Service (ETS) gives us an insight into how the economy has reacted over the past year. The figures show that claims to the ETS rose to above pre COVID-19 levels, suggesting this is due to an increase in unemployment and changes to working conditions and practices during the pandemic”.

Quarterly figures

The HM Courts and Tribunal Services has released its quarter three figures (Q3) for the period October to December 2020, which includes figures for the ETS.

The statistics are grouped and measured using the following:

  • Single Claims: track claims which have been registered and cite only one judicial complaint
  • Multiple Claims: track claims that have multiple judicial claims and/or multiple claims against the same employer.
Type of claim Claims registered in Q3 2020 % increase from Q3 2019
Single Claims 13,200 claims received 25% increase
Multiple Claims 29,000 claims received 82% increase

Jas continues “This snapshot of where we are today in respect of the Q3 statistics compared to the same time in 2019 shows a significant increase in claims in both Single and Multiple Claims. Although the figures in respect of Multiple Claims may seem alarming at first glance, they should be kept in perspective. Multiple Claims often deal with multiple claims being registered against one single employer, which means that the figures tend to be skewed”.

What the figures reveal

Unsurprisingly, the figures show that there has been a significant increase in the number of claims being registered with the ETS which has had a knock-on effect on the number of claims in the system waiting to be disposed of. The current outstanding caseload for Single Claims is at its highest level, surpassing the peak seen in 2009/10. It currently stands at 44,000 outstanding cases, which means the outstanding caseload for Single Cases rose by approximately 36%.

Even with an increased caseload it is encouraging to see that the ETS has processed 14,000 claims in Q3, which is up by 24% in the same period in 2019. This influx of claims has, however, resulted in an increase in the average time for disposing of claims. For Single Claims, disposal time has increased by 12 weeks to an average of 48 weeks, while disposal for Multiple Claims has seen an increase of 80 weeks to an average of 229 weeks.

Predictions

Jas concludes “With the extension of the furlough scheme to September 2021, it is expected that claims will level off in the immediate to short term. However, the predictions are that the economy will have to undergo some level of correction with the likelihood of increased unemployment, resulting in another increase in claims to the ETS.”

If you are in receipt of an employment tribunal claim, or you are thinking of making a claim against your ex-employer, the Employment Team at Wilkes have the depth of knowledge and experience you need to tackle the situation.

Contact Jas Dubb in the Employment team at The Wilkes Partnership on 0121 710 5929 or at jdubb@wilkes.co.uk for expert legal advice and practical guidance on defending or making an employment claim.

Now that schools have reopened, parents everywhere will be breathing a sigh of relief as we, hopefully, move towards some sort of normality. Naturally, there is some uncertainty around the impact that reopening schools could have on the rate of infection, so we may not be out of the woods yet. The vaccine rollout is progressing at an impressive pace but evidence may yet direct a return to self-isolating and, in turn, home schooling as a result of school closures. Hopefully, such moves would be temporary if they were to happen but, for the time being at least, this additional burden, may not be over yet – particularly for women. Sarah Begley asks if extending the furlough scheme will help working mums as schools reopen?

A recent survey by the TUC suggests that mums have been shouldering the majority of childcare duties during lockdown. Of the 50,000 women who took part, more than 70% of working mothers who had asked to be furloughed for childcare reasons since schools closed said they had been refused.

Of those surveyed, a staggering 90% of working mothers indicated that they had seen their anxiety and stress levels increase during the latest lockdown, and almost half (48%) were worried about being treated negatively by their employers because of childcare responsibilities.

Sarah Begley, Solicitor in the Employment team at The Wilkes Partnership comments, “During the Budget announced on 3rd March 2021, the Chancellor confirmed that the furlough scheme will be extended to the end of September. Employers will contribute 10% of the employee’s salary from July, rising to 20% for August and September. However, there will be no changes to the scheme from the worker’s side, and the eligibility criteria remains unchanged.”

Under the scheme rules, employees can be furloughed with 80% of their wages covered by the government (to a maximum of £2,500 a month) if they are:

  • clinically extremely vulnerable
  • caring for someone vulnerable
  • caring for children who are at home as a result of school and childcare facilities closing.

Sarah continues “There appears to be a widespread lack of awareness among workers that they can ask to be furloughed for childcare reasons. Two in five mothers said they were unaware that the scheme was available to parents affected by school or nursery closures”.

“Flexible furlough”, as the name suggests, allows furlough on a part-time basis. If an employer supports such a request, this option means families could choose to share caring responsibilities. Ultimately, the decision to furlough rests with the employer, and there are instances where a role is just not suitable for this to happen.

Sarah concludes “We are still navigating uncertain times so the extension of the furlough scheme should be welcomed, and encouraged, in appropriate circumstances”.

If you have any questions about the furlough scheme or flexible working, contact Sarah Begley, Solicitor in the Employment team at The Wilkes Partnership on 0121 73 4312 or at sbegley@wilkes.co.uk.

 

 

As the spring bulbs start to push through and the success of the vaccination programme offers us glimmers of hope for a brighter future, some sort of stability and routine is just visible on the horizon. For many exhausted, working parents that all begins to take shape when their children return to school on 8 March 2021.

The effects of a year of lockdowns combined with home-schooling and working from home are starting to become clear. A recent ONS Study, using data collected from England, Scotland and Wales, shone a light on the effect that home-schooling has had on wellbeing. An average of 50% of parents report an impact on their mental health, compared with 28% during the first lockdown in 2020. It has also been well documented that the demands of home-schooling have often fallen firmly on one parent. Even when both parents are working from home, 67% of women in, a heterosexual partnership, say they feel disproportionately affected.

Sian Kenkre, family lawyer at The Wilkes Partnership comments, “We usually see a peak in requests for family law advice in September after the long school holidays, and then again after Christmas. This pattern extended as we noticed a sharp increase in enquiries at the end of the first lockdown in 2020”.

Many of those enquiries came from women saying that the effects of the lockdown had brought problems in relationships and domestic arrangements into sharp focus. Under ‘normal’ circumstances these issues may have gone unnoticed as so much time is spent separately; different working routines, time away from the home, but the latest data suggests that this will continue to be a theme in the breakdown of relationships.

With the impact on mental health after an extended period of isolation, worries about job security, finances, and uncertainty about the future, it is not surprising that family lawyers expect to see another surge in divorce enquiries as the restrictions are gradually eased.

The effects of the pandemic on mental health and relationships could be described as the perfect storm. In times of economic uncertainty we know that relationships suffer. Sian continues “I have spoken to many clients during the lockdown period who are struggling to cope with the uncertainties created by the pandemic. Some feel trapped and are worrying about a separation while still cohabiting.

The decision to end a marriage or relationship is deeply personal and, in many cases, a time of great anxiety and sadness. My best advice is to find a lawyer you feel comfortable with. Taking early, practical advice from them to alleviate some of the stress will help you plan for the future”.

Finally, Sian said “Taking initial advice does not mean that you have to follow through with a divorce or separation. It does mean that you are well informed which can help to clarify some of the uncertainties that may be adding to stress levels. A good family lawyer will listen to your concerns, talk you through all of your options, and provide you with clear costs information so that in times of such uncertainty you can have some clarity.”

If any of this feels familiar and you do have questions about divorce or a relationship breakdown, contact Sian  on 0121 733 4316 or at skenkre@wilkes.co.uk.

Statistics from Q4 2020 indicate that retailers have faced significant hardships as a result of the nationwide lockdowns which were introduced to help supress the spread of Covid-19. As footfall plummeted and shopping habits shifted significantly towards safer online options, retailers have struggled to survive.

News reports have shown that it hasn’t just been smaller, independent retailers who have suffered; well-established names have also succumbed as the implications of lockdown became apparent. As our high streets begin to emerge from lockdown over the coming months, some key names will be missing: department store Debenhams will be a significant loss to many shopping districts, as will outlets under the Arcadia Group brands such as Top Shop, Top Man and Miss Selfridge.

Like the Arcadia Group, Debenhams entered into administration when faced with no other alternative. There was a glimmer of hope when Boohoo Group, the online retailer, bought elements of the Debenhams business from its administrators but, for the high street, that hope was short lived. The deal with Boohoo included only the Debenhams brand assets and website operations, meaning its high street presence would be committed to the history books as it makes the move to an online only operation. The ups and downs of the business over recent years had been well reported but few would have predicted such an outcome, certainly at such a pace, before the Covid-19 crisis erupted.

To see them through the uncharted territory of a pandemic, many smaller retailer businesses are likely to have made use of government backed schemes. The Bounce Back Loan Scheme (“BBLS”) and the Coronavirus Business Interruption Loan Scheme (“CBILS”) were introduced to provide financial support to businesses which were adversely affected by the impact of the virus. In the form of term loans, overdrafts and the like, businesses could borrow up to £50,000 under the BBLS, while larger figures of up to £5 million were available under the CBILS.

Both schemes have proved incredibly popular, but it is widely expected that they will play a key role in many insolvency cases over the coming months. Recent press reports mention that HMRC sent a first batch of 24,000 letters last year, followed by a second batch of 11,000 letters, to businesses seeking confirmation that they were eligible for such assistance. Recipient businesses had 21 days to respond; failing to do so would see them barred from applying for future support.

By restricting the presentation of winding up petitions and suspending statutory demands to ease creditor pressure, the Corporate Insolvency and Governance Act 2020 is one reason that an increase in the number of insolvency cases has not materialised. However, the protection afforded many businesses by this act comes to an end on 31 March 2021. This deadline has been extended and may be extended again, but once the suspension is lifted it is expected that a large backlog of petitions will develop driving more businesses along a similar path to that taken by Debenhams and the Arcadia Group.

At the end of March 2021, businesses will have to account for VAT receipts between 20 March 2020 and 30 June 2020. However, following the introduction of the new VAT deferral payment scheme, businesses are no longer required to pay the deferred VAT in full on or before 31 March 2021, but can pay their deferred VAT in equal instalments, interest free.

Finally any businesses considering formal restructuring options such as administration in the hope that stakeholders will be able to repurchase the business free of existing debts will soon have their options significantly reduced. The draft Administration (Restrictions on Disposal etc. to Connected Persons) Regulations 2021 are due to come into force on 30th April 2021 and will prevent the sale of all, or a substantial part of, a company’s business and assets to connected parties without the consent of the creditors or an independent written opinion. This hot topic will form the basis of a separate publication but, for now, directors need to understand that their options are increasingly more limited.

The Business Recovery Team at The Wilkes Partnership represents decades of experience in the rescue or restructure of businesses. If your business used either the BBLS or CBILS schemes and you now have questions about what happens next, or if the pandemic has raised significant financial challenges for your business, contact David Cleary or John Cooper on 0121 233 4333 or email them at dcleary@wilkes.co.uk or jcooper@wilkes.co.uk.

 

Cosmetic surgeons have reported an increase in requests for consultations due to “Lockdown face”.

“Working from home” became part of the new normal for many when the country entered a national lock down on 23rd March 2020. As video calls replaced face-to-face conversations, how people looked, or thought they looked, began to take on a greater significance.

The term “Lockdown face” has been coined by cosmetic surgeons to explain the reported surge in requests for consultations as people seek to improve their appearance.

While the number of people opting for surgical and non-surgical procedures is increasing, it’s important to remember that negligent surgery or treatments can be devastating and can result in permanent physical and psychological damage.

It is essential to carry out extensive research before undergoing any kind of cosmetic surgery or treatment:

  • Experience and qualifications: make sure that the surgeon or practitioner has the relevant qualifications to carry out the procedure.
  • Location: cosmetic surgeries or treatments must be carried out in a hospital or other accredited surgical facility. Check that the location is appropriately licenced.
  • Insurance: ensure that the surgeon or practitioner has full insurance in place at the outset of the matter. Without that insurance, if anything goes wrong options for recourse may be limited.

More general considerations include:

  • Will the results be permanent?
  • Does recovery call for time off work?
  • Will undergoing the procedure have any financial implications such as losing time from work, or needing follow up treatments or care?

What happens if the results don’t meet the expectations?

The first step is always to speak to the surgeon or practitioner who carried out the procedure. It may be that the body needs time to heal before the final results can be seen properly. If that isn’t the case, this would be the time to discuss a revision procedure with them.

If tackling any concerns directly with the surgeon or practitioner fails to bring about a satisfactory conclusion, there are other options to consider:

  1. Claim under s.75 Consumer Credit Act 1974: If a payment of £100 or more is made for the procedure by credit card it can be reclaimed under section 75 of the Consumer Credit Act 1974. The credit card company is deemed jointly liable should anything go wrong, but a claim must be made within six years of the procedure being paid for.
  2. Pursue a medical negligence claim: A medical negligence claim has to prove that a duty of care was established but it fell below the standard expected of a reasonable surgeon or practitioner.

Kate Campbell-Gunn, Associate Solicitor in the Personal Injury and Clinical Negligence team at The Wilkes Partnership, understands that negligent surgery or treatment can be devastating, with unsatisfactory results leaving a legacy of physical and emotional pain. By pursuing a claim on your behalf, Kate would seek to recover funds to meet the costs of any corrective treatments along with any counselling that may be necessary following the ordeal.

Contact Kate on 0121 733 4314 or at kcampbell-gunn@wilkes.co.uk if think you may have reason to pursue a medical negligence claim.

 

Whether it’s preventative or treatment, consent must always be sought from a person receiving a medical intervention. That consent should be given by the person themselves or, in the case of a minor, by a parent or guardian.

So what happens if the patient is an adult who lacks the mental capacity to give that consent? Who can give, or indeed refuse to give, consent on their behalf? The rollout of the Covid-19 vaccine has bought this question into sharp focus as the government attempts to offer protection to those at greatest risk from the virus, some of whom are affected by other medical issues such as Alzheimers Disease or dementia which can impair the ability to give the required consent.

Mr Justice Hayden considered this question at a hearing in the Court of Protection recently. The patient, a care home resident in her 80s who lives with dementia, had been invited to receive the vaccine as part of the vaccination programme. Her doctors considered, in line with government guidance, that it was in her best interests to receive it. However, her son raised an objection believing that she should wait until there is “more evidence” that the vaccine is effective.

Mr Justice Hayden sided with the doctors. He agreed that the patient was at “very high risk”, that receiving the vaccination was “in her best interests”, and that it “should be administered as soon as possible”.

So who can consent to receiving the Covid-19 vaccine on behalf of an adult with dementia when they cannot give consent for themselves?

Any arrangements put in place prior to the onset of dementia could be the answer. A valid Lasting Power of Attorney for Health & Welfare gives the patient’s attorneys the power to make this decision by applying the “best interest” criteria. All such decisions may be subject to different guidance so there is no set provision for how this should be done, but steps should be taken, as far as possible, to seek the patient’s own views and to consider any views they expressed prior to losing mental capacity. Medical or care advice and the views of those close to the person should also be sought.

In the case of the Covid-9 vaccine the views of a GP and carers, along with general medical advice and government guidance, would all be relevant factors in delivering a “best interests” decision.

Where the person does not have an attorney for health and welfare the decision should be made by health professionals in consultation with the person’s next of kin and in line with Mental Capacity Act Best Interest decision making guidance.

It is, of course, likely that a decision made by a health and welfare attorney to refuse the vaccine on behalf of a patient would be challenged by health professionals in the court of protection if that decision was made without going through a best interest decision making process.

Ann-Marie Aston and Sophie Fenn are solicitors in the Wilkes Court of Protection Team and advise on issues relating to mental capacity and Lasting Powers of Attorney.

The lockdown and its associated restrictions  have had a substantial impact on the economy and continue to do so. More tenants are unable to afford the rent for their commercial properties in the long term. Landlords are looking to let to more reliable tenants or choosing to use their commercial properties for alternative purposes, prompting a rise in the use of break clauses.

In this article Katie Briggs, Associate Solicitor in the Property Litigation Team at Wilkes looks at Break Clauses and some of the common factors both landlords and tenants should consider before serving one.

One of the main ways to end a commercial lease early is to exercise the break option. Break Clauses in commercial leases are extremely common. However, break notices can be a complex area of law, so it is vital to ensure they are correctly drafted and served. It is also important that you are aware of any conditions to ensure that the break is exercised correctly, the most common ones being the tenant giving up occupation and ensuring rent payments are up-to-date.

Case law has demonstrated that failing to adhere to covenants in the lease could deem the exercise of the break ineffective. Examples include the tenant’s failure to paint the property in the last year of the term (Bairstow Eves (Securities) Ltd v Ripley) and the tenant’s failure to provide vacant possession after removing the landlord’s fixtures and fittings (Capitol Park Leeds PLC v Global Radio Services Limited [2020]).

It is important for the tenant to be advised of his requirements under the lease to validly exercise the break clause and to ensure these are done before the break date. Failure to do so may render the break notice invalid. It is equally important for the landlord to be aware of these requirements to ensure the tenant meets these or the landlord could dispute the validity of the break option.

The first step is to review the lease. If there is a break clause, the relevant provisions need to be carefully reviewed and understood.  Not only is this necessary to comprehend the conditions required in exercising the break but it is also necessary to determine the deadline to serve the notice, who it must be served on and how it must be served.

It is important to ensure the notice is served on the correct people, using the correct method of service and in accordance with the break clause. An incorrectly served break notice may be deemed invalid. If there are managing agents for the property, it may also be worthwhile serving a copy on them, however this is to be done in addition to serving a copy on the landlord as opposed to in place of.

It is strongly advised to take independent legal advice upon receipt of a break notice. Not only is this important to determine whether the notice is valid but it can also be important to understand the implications of the break notice, both legally and practically. It will also prove beneficial if you wish to contest the notice and allows you to obtain advice in relation to not compromising your legal position.

Landlords and tenants should note that ending the lease does not prevent claims for failure to repair (dilapidations). You can read more on the topic of dilapidations here.

Whether you are the commercial landlord or the commercial tenant and whether you wish to serve a break notice or have received a break notice, The Property Litigation Team at The Wilkes Partnership Solicitors are able to assist you on all matters relating to break notices.

You can contact Katie Briggs on 0121 710 5839 or kbriggs@wilkes.co.uk. 

2020 will certainly be a year for the history books of future generations. There have been many enlightening stories throughout the pandemic and the recent case of Ylenia Angeli is one of particular note.

Ylenia’s 97 year old mother has dementia and resides in a care home in the north of England.  Due to COVID-19 having had such a devastating impact on the care home population, care homes have been more or less closed to all visitors meaning families not being able to visit their loved ones.

Ylenia was distraught by the prospect of a further enforced separation from her mother for the second lockdown with no visiting allowed.  She decided to take ‘drastic action’ and remove her mother from the care home to go and stay with her.  The care home called the police and Ylenia was arrested (then de-arrested) and her mother returned to the care home.

Unfortunately, Ylenia only had a Lasting Power of Attorney (LPA) covering finances for her mother and not one for health and care decisions.  It appears that due to her dementia, Ylenia’s mother lacks the mental capacity to decide where to live and therefore may be subject to a Deprivation of Liberty authorisation meaning she must stay at the care home.  This doesn’t mean that she can never leave, but there are procedures to go through to move someone who lacks capacity.

A health and care LPA would certainly have helped Ylenia’s cause however the coronavirus legislation has overridden many normal procedures during the course of the pandemic and any move would have to comply with this legislation.

It is recommended that an LPA for health and care decisions as well as finances is put in place to ensure decisions can be taken by your chosen attorneys in the event you lack mental capacity.

If you have any questions about the issues raised in this article or an LPA for either finances or health and care, please contact Ann-Marie Aston at The Wilkes Partnership Solicitors on 0121 733 8000 or aaston@wilkes.co.uk

Since the start of the COVID-19 pandemic, there has been a surge in demand for Will writing, both in preparing new Wills and updating existing Wills.

In this article Jack Ackrill, Solicitor in the Contentious Probate Team at Wilkes discusses the importance of choosing the right executor in order to avoid loved ones having to deal with a dispute after we die.

It is important to be aware of and understand who can be appointed as an executor and just what that role entails so that we can make an informed decision.

The fact of the matter is, virtually anyone can be an executor; a family member, a friend or perhaps an independent professional such as an independent financial advisor, accountant or a solicitor. The most important matter to consider when making this decision is whether the appointed individual is trusted and, quite frankly, capable of dealing with your affairs competently and in accordance with your wishes.

Executors have a duty to properly administer the deceased person’s estate. This requires collecting in the estate assets and paying off the estate liabilities before distributing to the named beneficiaries in the Will. Of course, this should be done (regardless of whether or not they are a professional executor) with reasonable skill and care. Executors owe a duty to the beneficiaries of the Will to ensure that the estate is properly administered.

Disputes usually arise where relationships break down between fellow executors and/or beneficiaries. What follows is a lack of trust and allegations being made as to potential maladministration and perhaps favouritism towards other beneficiaries or third parties. The estate and its beneficiaries tend to lose out considerably in these types of disputes, especially if the matter proceeds to a fully contested trial in the High Court where legal costs can spiral out of control.

It is therefore very important that, when deciding who your executors are going to be, that you consider the nature of the role, their obligations and the scope for a potential dispute in the event of disagreement and the implications this would have on the estate.

Conversely, if you find yourself in a situation where you disagree with what an executor is doing and you are a beneficiary or fellow executor, you may find yourself with little option but to take independent legal advice to try to resolve the matter.

When administering an estate, disputes may arise where the executors:

  • are not performing their duties correctly;
  • are incapable of performing their duties,
  • are disqualified due to a criminal conviction;
  • have a conflict of interest; and
  • have acted in a way which amounts to serious misconduct in administrating the estate.

If an executor is considered by a beneficiary or a fellow executor to have failed in their duties to administer an estate, there may be option for recourse via the High Court. As above, this is a costly and time-consuming process, but may be unavoidable depending on the circumstances.

Indeed, I would strongly suggest that anyone finding themselves in such a predicament should try to obtain independent legal advice to assess their options before taking any further action.

The Contentious Probate Team at The Wilkes Partnership advises executors and beneficiaries faced with issues in relation to the conduct of an estate administration and/or removal of executors if appropriate.  If you wish to discuss any aspect of the obligations of an executor or issues regarding an estate, please get in touch with Jack Ackrill on 0121 233 4333 or via email on jpackrill@wilkes.co.uk.

Last year, probate registries experienced significant delays in issuing Grants of Probate. In the past, applications for a Grant had taken up to 2 weeks, but in lieu of the delays, applications were taking 12 weeks and longer to process.

This was the result of a surge in applications prior to planned fee increases, closure of regional probate registries and changes to the internal systems. This in turn led to delays at HMRC who took over 5 weeks to issue inheritance tax receipts in taxable estates. In total, therefore, it was taking up to 3-4 months to obtain a Grant.

Earlier this year, probate registries managed to reduce their time scales and applications were taking no longer than 3 weeks to process. However, following the outbreak of COVID-19, probate registries are facing the same delays that we saw last year. This is largely due to a reduced workforce because of the furlough scheme and 80% of their staff working remotely. The time taken to obtain a Grant of Probate has once again risen and with limited telephone lines, it has become incredibly difficult to even obtain an update on an application once it has been sent.

Probate registries have tried to implement measures to tackle the delays, including taking applications online. HMRC have also started to accept digitalised signatures and will submit the inheritance tax receipt directly to the relevant probate registry. With more staff returning to work at the probate registries, it is hoped that time scales will start to come down again.

Despite these delays, we are on hand to provide assistance in applying for probate and should you have any questions in regards to applying for a Grant of Probate in a deceased’s estate, please contact Ellie Holland on eholland@wilkes.co.uk or 0121 733 8000.

The Wilkes Partnership have one of the largest Private Client teams in the Midlands and our solicitors are based across our Birmingham and Solihull Offices and can offer appointments to suit via telephone or video call.