Due to the ongoing situation surrounding COVID-19 there have been some changes in relation to the way in which the Family Court will operate. Aaron Keene, Partner & Head of Family Law at Wilkes outlines some of the changes below and how they might affect you.

Hearings in the Family Court

Since 19th March, the Family Courts have been making changes to their operations, always with the aim of ‘keeping business going safely’, and the President of the Family Division, Sir Andrew McFarlane, stated that all Family Court hearings should be undertaken remotely – either via email, telephone, video, Skype or otherwise.

On Monday 23rd March, ahead of the Prime Minister announcing the nationwide lockdown, Mr Justice Macdonald, provided further guidance on ‘The Remote Access Family Court’ including a ‘Protocol for Remote Hearings in the Family Court and Family Division of the High Court’.

Whilst there is now a detailed procedure for remote hearings which we are studying and following here at Wilkes, there is no ‘one size fits all’ way of approaching remote hearings and no single software platform to be used. Parties are therefore able to choose from a range of different options in order to make remote hearings work best in the circumstances and fit with the needs of our clients.

Included in the types of cases suitable for remote hearings are: all directions and case management hearings; emergency protection orders; interim care orders; injunction applications; and financial cases. Even where a case is urgent, it should be possible for arrangements to be made for it to be conducted remotely. In all cases, provision is being made for E-bundles to be sent into the court.

A range of issues have been considered including access to technology and software to conduct hearings remotely, particularly operating licences, as well as some parties struggling with the rapid technological change that is having to take place. However, the first fully Skype based trial took place in the Court of Protection in front of Mr Justice Mostyn only last week and proved to be a successful test of the technology proving what is possible for the Family Courts.

Unfortunately, given the nature and risk presented by the COVID-19 outbreak, it must also be appreciated that there may be some cases that will need to be adjourned for longer periods of time because a remote hearing is not possible. From 19th March court staff are able to waive the application fee for an adjournment because of coronavirus in certain circumstances.

There is still an urgent need to consider, in respect of each court centre, how proceedings will be issued remotely if all courts in a given area are shut down and how orders will be drawn and sealed and we are expecting guidance to be provided by the Family Courts in due course.

Currently in the Birmingham Family Court, all hearings are to take place by telephone unless the Court informs you otherwise or you have made alternative arrangements with the Court. This is with a view to video or Skype hearings being introduced as soon as everything is in place. Overall, the objective is that the remote hearing should be as close as possible to the usual practice in court.

How does the lockdown affect you?

The government has issued guidance for separated families now that the country is under lockdown conditions being that where parents do not live in the same household, children under 18 can be moved between their parents’ homes.

The President of the Family Division and CAFCASS have also provided some further information and guidance to help get through these difficult circumstances where Child Arrangement Orders are in place.

Firstly, it is important to remember that the guidance does not mean that children must be moved between homes. The decision whether a child is to move between parental homes is for the child’s parents to make after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.

Where parents, acting in agreement, exercise their parental responsibility to conclude that the arrangements set out in a CAO should be temporarily varied they are free to do so. It would be sensible for each parent to record such an agreement in a note, email or text message sent to each other.

Where parents do not agree to vary the arrangements set out in a CAO, but one parent is sufficiently concerned that complying with the CAO arrangements would be against current Public Health England/Wales advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in the Family Court, the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the Stay at Home Rules in place at that time, together with any specific evidence relating to the child or family.

Where, either as a result of parental agreement or as a result of one parent on their own varying the arrangements, a child does not get to spend time with the other parent as set down in the CAO, the courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent within the Stay at Home Rules, for example remotely – by Face-Time, WhatsApp, Skype, Zoom or other video connection or, if that is not possible, by telephone.

The key message should be that, where Coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child.

Conclusion

What remains to be said is that the situation is constantly evolving on a daily basis, if not hourly. At Wilkes our Family Law team are doing all they can over the coming days and weeks to keep you informed regarding the fast-moving landscape of Family Law during these unprecedented times and are on hand and ready to offer you the support that you need at this difficult time.

The Wilkes Partnership have a large team of Family Law experts on hand to assist you with any matter. To discuss any Family Law related matter please contact Aaron Keene on 0121 710 5947 or abkeene@wilkes.co.uk.

In this article James Leo, Partner and Head of Employment at Wilkes looks at the recent developments around COVID-19 and what it means for the world of Employment Law.

As the UK moved to the ‘delay’ phase of their coronavirus action plan, employers must take action to protect their workforces whether UK-based or working cross-border.

The outbreak of coronavirus, known officially as COVID-19, raises key points for us to consider within employment law, immigration, Health & Safety and data protection law for UK employers.

Social distancing and vulnerable people

Current government advice is for everyone to stop unnecessary contact with other people – ‘social distancing’. This includes:

  • working from home where possible
  • avoiding busy commuting times on public transport
  • avoiding gatherings of people, whether in public, at work or at home
Employers should support their workforce to take these steps. This might include:
  • agreeing more flexible ways of working, for example changing start and finish times to avoid busier commuting periods
  • allowing staff to work from home wherever possible
  • cancelling face-to-face events and meetings and rearranging to remote calling where possible, for example using video or conference calling technology
Vulnerable people

There has also been guidance issued by the government that strongly recommends people with a higher risk of catching coronavirus practice strong social distancing measures.

Employers must especially be aware and take extra steps for anyone in their workforce who falls within a vulnerable group. They include, but are not limited to, those who:

  • have a long-term health condition, for example asthma, diabetes or heart disease, or a weakened immune system resulting from medicines such as steroid tablets or chemotherapy
  • are pregnant
  • are aged 70 or over
  • care for someone with a health condition that might put them at a greater risk
    employers can access the latest government information and advice online.
Key workers

On Monday 23 March 2020, all schools within the UK closed until further notice. This has caused a further strain on employers and employees due to a number of staff subsequently facing childcare arrangement issues. School will only be available to people who are ‘key workers’. A list of ‘key workers’ for whose children schools will remain open, is also now available here.

Employers may reasonably expect their employees to make use of these facilities – where the employee’s partner is a key worker for example – without going into invasive investigation that might breach anyone’s data protection rights.

Self-Isolation and Sick Pay

Employees in self-isolation should follow their workplace’s usual sickness reporting process.

Employees can ‘self-certify’ for the first 7 days off work. This means following their workplace process but not having to get a note from a doctor or NHS 111.

On 20 March 2020, the government introduced a new ‘online isolation note’ service which allow employees to get an online self- isolation note to provide to employers with certification of coronavirus absences. Those self-isolating due to coronavirus for more than 7 days can get an online self-isolation note from the:

Individuals will be prompted to answer a few questions, after which an isolation note will be emailed to them. The service can be also used to produce an isolation note on behalf of someone else, while those without an email address can have the note sent to a trusted family member or friend, or directly to the employer.

It is a good idea to check your workplace’s policy on absence from work. Employers might need to be flexible if asking for self-isolation notes due to the severity of the virus causing hospitalisation in some cases.

Must “vulnerable” employees who are required to self-isolate be paid? Can they be placed on sick leave, or required to use their holiday entitlement?

Employers are most likely unable to specify that employees take holiday for any long period of self-isolation in the absence of a contractual right to do so. These employees may not be “sick”, and may not be covered by sick leave provisions and employers are advised to read into their contracts and policies and consider their position.

Employees who according to government guidance should self-isolate to remain away from their workplace, are more likely to be considered as either working from home or on a period of leave. If the employee should work from home, the employer would be expected to pay the employee as normal.

Furloughed workers

Employers struggling to cover staff costs due to COVID-19, may be able to access support to continue paying part of employee wages, to avoid redundancies. This has been named as the Coronavirus Job Retention Scheme.

Employers who intend to access the Coronavirus Job Retention Scheme, should discuss with employees becoming classified as a furloughed worker. This would mean that they are kept on their employer’s payroll rather than being laid off.

To qualify for this scheme, employees should not undertake work for the employer while they are furloughed. This will allow the employer to claim a grant of up to 80% of the employees’ wages for all employment costs, up to a cap of £2,500 per month.

At the employer’s discretion, it is possible to fund the differences between this payment and the employee’s salary.

James Leo explains, “Specific legal advice should be sought where necessary, as the situation is changing daily. This is an entirely new situation to everyone and employers are having to think about what steps they can take to facilitate home working including encouraging employees to ensure that they have the correct set-up at home to be able to work there if required to do so along with what options are available to staff and ensuring that their businesses are protected.”

For any further guidance on this issue or any other employment related matter, please contact James Leo on 0121 710 5970 or any other member of the Employment Team at Wilkes. You can also email us on employmentteam@wilkes.co.uk and a member of the team will be in touch.

 

The Employment Law team at Wilkes will be doing all they can over the coming days and weeks to keep you informed regarding the fast-moving landscape of Employment Law during these unprecedented times.

We are on hand and ready to offer you the support that you need at this difficult time.

Recent Developments

The last 24 hours saw an amendment to the Presidential Practice Direction on Coronavirus issued last week.

Due to the uncertainty surrounding how long special measures are required for the conduct of Employment Tribunal hearings, a review mechanism has been implemented.

The key message is that ALL in-person Employment Tribunal hearings will be converted to telephone case management hearings if the hearings were due to start on or before Friday, 26 June 2020.

Any in-person hearings due to start on or after Monday, 29 June 2020 will remain listed normally for the time being.

The review dates are 29th April and 29th May 2020, we will be sure to keep you informed as to what this means in practical terms to both employers and employees.

In addition, The Employment Appeal Tribunal (EAT) has announced that they will not be conducting any hearings (including telephone or Skype hearings) from Wednesday, 25 March 2020 until Wednesday 15 April 2020. Any appeals lodged with the EAT during this period can only be lodged by email.

It has also this afternoon (25th March) been announced that all London (Central) Tribunal hearings have been postponed until further notice. It is worth noting that this applies to both in-person and telephone hearings. A review of the situation regarding telephone hearings is currently scheduled for the 30th March.

If you have any questions or queries regarding this update please contact Sarah Begley on 0121 733 4312 or via email on sbegley@wilkes.co.uk.

Commercial Tenants - Factors To Consider During The COVID-19 Outbreak

With the outbreak of COVID-19 causing mass disruption to businesses across all industries commercial tenants could soon find themselves experiencing cash flow problems.

The March quarter day (25th) is looming and many commercial tenants will be concerned to have to find 3 months’ rent to pay to their Landlord.

In most instances it would be hoped that an amicable agreement could be made between landlord and tenant to ensure business continuity, such as a rent holiday or making smaller more frequent payments. However, what are the implications of not paying?

In this article Mark Hodgson, Partner in the Real Estate team at Wilkes identifies some of the possible ramifications that could arise as a result of non-payment of rent of which commercial tenants should take note.

There are a number of remedies available to commercial Landlord when a Tenant does not pay the rent on its due date, these include the following:

Forfeiture

Forfeiture is the Landlord’s right to terminate the lease where a tenant either fails to pay rent or is in breach of covenant or condition of the lease. The landlord’s right and date for forfeiture is based upon the clauses specified within the Lease, but the right usually arises where rent is overdue for between 14 and 21 days.

There are two options with regards to forfeiture for non-payment of rent. A landlord can either:

  1. Change the locks, commonly using a certificated bailiff to do so; or
  2. Forfeit through court possession proceedings, which can be coupled with a claim for arrears.

However, if after the right to forfeit arises the landlord does something which treats the lease as continuing, the right to forfeit the lease on the basis of those particular arrears will be irrevocably lost. Even if the Landlord formally demands rent, they will waive the right to forfeit.

The tenant does have the option of applying to the Court for relief from forfeiture. In very basic terms if the tenant purges the breach and pays the arrears and any landlord’s reasonable costs the Court may exercise its discretion to reinstate the lease. Tenants have six months to make the application or lose the right to do so.

Sue for arrears

The Landlord may issue a demand for payment, coupled with a threat that County Court Proceedings will be issued on expiry of the deadline set in the demand in default of payment.

Although an effective tool, unless court proceedings are absolutely necessary they are often rejected in favour of other methods of recovery because they can be expensive, and it can take months to receive a hearing date, if there are any grounds to dispute the demand.

Winding Up

The Landlord could proceed straight to winding up (liquidation) of the tenant on the basis that they are insolvent, as evidenced by the fact that they cannot pay debts as they fall due. Normally, a statutory demand will be served, but not necessarily. A statutory demand is a formal demand for payment of the debt, which an insolvency court would rely on in order to make a winding up order if the debt is not paid.

This is an expensive route to go down for the Landlord, especially if the tenant is insolvent. However, if the tenant is not insolvent (and has other assets to protect), winding up is a serious threat.

Commercial Rent Arrears Recovery (“CRAR”)

This procedure allows landlords of a commercial premises to instruct an enforcement agent (for example a certificated bailiff), after giving 7 days’ notice, to take control of a tenant’s goods and sell them in order to recover the value of the rent arrears.

If a Landlord proceeds down this route, it would waive their right to forfeit for the current arrears, although a new right would accrue if rent due on the next rent payment date is unpaid. It really depends on whether the landlord’s primary aim is to get the arrears paid, and continue with the tenancy, or to seek possession.

Pursuing a guarantor

If a person or company has agreed to act as a guarantor for the tenant’s covenants under the lease, it is open to the landlord to consider pursuing them if the tenant is in arrears of rent.

Depending on the provisions in the lease and the guarantee given by the guarantor, the usual way to enforce the guarantor’s obligations would be to issue court proceedings.  A landlord may also, in certain circumstances, be able to claim against a former tenant of the premises.

To conclude, how the landlord proceeds is dependent on the solvency of the tenant and whether the landlord wants to prioritise retaining possession. In the current climate they may appreciate the risk of an empty property if a tenant is evicted.

Mark recommends that the first course of action is to start a dialogue with the landlord to achieve a sensible and reasonable compromise.

The Real Estate team and the Property Dispute team at The Wilkes Partnership are on hand to help if you have questions relating to anything in this article. Please call 0121 233 4333 if you need any advice or assistance.

To our valued clients and partners,

 As the impact of COVID-19 continues to evolve we wanted to take the time to reassure you of the actions we are taking to protect our clients, colleagues and the wider communities, whilst working to maintain our services to you at this time.

Our commitment to you

We are open for business and will continue to provide you with the best service we can in the safest way possible.

With this in mind, and in-line with government advice, we have instructed our staff to minimise face-to-face contact until further notice, and where possible our staff will be working from home across all of our offices.

You can contact us as usual in a number of ways by either phone, email or by a pre- arranged video call. Our staff are set up and ready to respond to you as usual. We are working hard to mitigate any disruptions, and will continue to provide you with the legal service and advice you need, delivered with the high-level of service you have come to expect from Wilkes.

If you have an appointment scheduled your legal advisor will be in touch shortly to discuss the options, if they haven’t done so already.

Thank you for your patience during these unprecedented times .We look forward to returning to normal, with a handshake, as soon as possible.

The Wilkes Partnership Solicitors

Birmingham –  0121 233 4333

Solihull –  0121 733 8000

Following a recent preliminary hearing in the case of Mr J Casamitjana Costa v The League Against Cruel Sports, employment Judge Postle held that ethical veganism is capable of being a philosophical belief and therefore is a protected characteristic under the Equality Act 2010.

According to an article recently published by the BBC, there are currently 600,000 vegans in the UK, and the number is growing. The Vegan Society defines veganism as follows:

‘A philosophy and way of life which seeks to exclude, as far as possible and practical, all forms of exploitation and cruelty to animals for food, clothing or any other purpose and by extension promotes the development and use of animal free alternatives for the benefit of humans / animals and the environment, in dietary terms it denotes the practice of dispensing with all products derived wholly or partly from animals.’

Judge Postle considered the principles found in the Equality and Human Rights Commission Code of Practice on Employment 2011, particularly paragraph 2.59 which sets out the conditions for a philosophical belief to be protected under the Equality Act 2010 as follows:-

  • ‘It must be genuinely held;
  • It must be a belief and not an opinion or view point based on the present state of information available;
  • It must be a belief as to a weighty and substantial aspect of human life and behaviour;
  • It must attain a certain level of cogency, seriousness, cohesion and importance; and
  • It must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.’

In passing the decision, the Judge referred to the Claimant’s day-to-day lifestyle to conclude that ethical veganism was a protected belief. References were made to the fact that the Claimant ate no animal products, would rather go hungry than eat animal products, did not wear any clothes from animal products and would walk an hour to his destinations in order to avoid using transport posing risks to insects and birds.

Judge Postle concluded his decision by stating that he was satisfied, and in fact found it easy to conclude that, there was overwhelming evidence before him that ethical veganism was capable of being a philosophical belief and thus amounted to a protected characteristic. It is unlawful to discriminate against someone on the grounds of nine protected characteristics in total including religion or belief.

The full merits hearing of Mr Casamitjana’s substantive claims relating to the reasons for his dismissal is to take place imminently.

Lisa Moore, Associate in our Employment Team, comments: “This topical case highlights the potential difficulties employers can face in determining what may amount to a protected philosophical belief. However, it does not necessarily mean that all individuals practising veganism will now be entitled to enhanced protection. This decision was very much based on the specific facts of the case including the Claimant’s particular belief system and his way of life. It will certainly be interesting to see what the wider effect of this ruling is moving forwards.”

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 or email us at employment@wilkes.co.uk.

IR35 Reform, The Wilkes Partnership Solicitors, Employment Law, Jas Dubb

Last year, HM Revenue & Customs (‘HMRC’) published draft legislation for IR35 reform in the private sector. It details plans to make medium and large companies responsible for determining whether the off-payroll working rules apply from 6 April 2020.

“Off-payroll working” is the term used by HMRC to describe the situation where an individual worker provides his/her personal services via their own Personal Service Company (‘PSC’).

The IR35 rules target contractual workers who operate through an intermediary, usually a limited company and/or via an agency, to offer and provide services to an end business user, but, who would otherwise be deemed a full-time employee if they did not work through such an intermediary or agency. HMRC defines these workers as “disguised employees” as they may be awarded the same rights and benefits that a full-time employee have, but are paying significantly less in tax. It is estimated the cost to the Exchequer will reach £1.3 billion by 2023/4 in lost revenue.

IR35 rules have been implemented by the government since 2000, but the legislation has been subject to continual changes and advancements – the latest being the rules which effect the private sector. HMRC created the IR35 legislation to combat tax avoidance by a PSC. The legislation has caused some frustration within the contractor workforce, with many battling with HMRC to prove that they are outside of IR35, and therefore not liable to be taxed at a higher rate.

Jas Dubb of The Wilkes Partnership considers the impact of the new rules and how companies can prepare for the challenges ahead.

HMRC are running checks on contractual workers to discover whether or not they have been using their limited company status to avoid paying the higher tax and national insurance that a permanent employee is subject to. If these individuals are found to be inside IR35, they will have to pay HMRC what is deemed unpaid tax and national insurance.

What does this mean for the Private Sector?

Since the implementation of IR35, there have been several amendments made by HMRC to ensure that contractors are paying the correct tax. However, there was a belief that a lot of PSC owners subject to the IR35 regime were paying too little tax and national insurance. Because of this, new ‘off-payroll’ rules were implemented in April 2017 for contractors working for public sector organisations.

In the original legislation, it stated that the sole responsibility for paying the right amount of tax according to IR35 rules sat with the contractor. This has changed so that the obligation now sits with the end business user hiring the contractor. If the contractor is found to be within the IR35 rules, the end user client must deduct employees’ national insurance and tax from the contractor’s pay, as well as paying the correct amount of employers’ national insurance. These rules apply to most private sector businesses from April 2020, although the smallest 1.5 million businesses are excluded.

Ultimately, medium and large businesses will be responsible for concluding whether the contractors they engage fall inside or outside IR35 and apply the off-payroll rules deduct the relevant tax and national insurance from their pay and give it to HMRC.

What are some of the changes?

  • The IR35 legislation has already been implemented in the Public Sector, and it is going to be extended to the Private Sector from 6 April 2020.
  • From 2020, the liability for assessing IR35 status for tax purposes is no longer solely on the contractor’s intermediary but the end business organisation.
  • Small organisations will be exempt.

Jas Dubb explains that: “Many businesses that use contract workers may have their plans in place for IR35 reform. However, with just months to go, it is vital that companies prepare and give this complicated tax reform the focus it undoubtedly deserves.

Companies and self-employed individuals should be mindful to have up to date contracts. It is also important for companies to have policies and procedures in place to ensure the new IR35 legislation is taken into account.”

For any further guidance on this issue or any other employment related matter, please contact Jas Dubb on 0121 710 5929 or at jdubb@wilkes.co.uk. You can also contact any other member of the Employment Team on 0121 233 4333 or email us at employmentlaw@wilkes.co.uk.

“When you fall in love with your dream home it is sometimes difficult to see it without rose tinted glasses. Buying property is more complex than it has ever been before,” said Amanda Holden, Partner and Head of Residential Conveyancing at The Wilkes Partnership.

According to a report from The Conveyancing Association in December 2019; ‘as the global climate undergoes rapid and unprecedented changes, the frequency and severity of flood events in the UK are due to increase.’

Amanda continues: “We all remember the first two weeks of November 2019 when we saw bigger floods and new areas of flooding on our roads around Birmingham and Solihull. This increased flood risk has a knock-on effect on the house buying process.”

“As part of the conveyancing process we carry out a drainage search which checks whether a property is connected to the mains foul water sewer or whether it has its own septic tank. It will also confirm whether the property is connected to the mains surface water system and the location of the nearest mains surface water drain to the property. If the drainage search doesn’t reveal where surface water goes then you may have a problem as it is essential to know where the surface water drains to from a flooding point of view. We also carry out an environmental search which contains information as to the flood risk of a particular property”.

“You will want to know if the property is at risk of flooding and importantly whether you will be able to obtain suitable insurance under normal terms. If your property is in an area affected by flooding you will need to check whether there are any exclusions on the buildings insurance policy you have chosen. Any mortgage lender must be satisfied that those exclusions don’t prejudice their lending,” Amanda said.

In addition, if the property you have your heart set on has a paved drive you will need to find out whether it is permeable. Due to the increasing trend to fully pave front driveways, which reduces the ability for the ground to absorb excess surface water, regulations have been in force since 2008 requiring driveways to be built with permeable material.

The risk of flooding is just one of many aspects of the house buying process that Wilkes will consider for you.  The residential conveyancing team at Wilkes offer an efficient, friendly service in the community where you can see somebody face to face who will handle your sale and purchase from beginning to end.

If you would like any advice on Residential Conveyancing you can contact Amanda Holden at The Wilkes Partnership on 0121 733 4307 or aholden@wilkes.co.uk.

Deputyship Refund Scheme – How To Claim Your Refund

Those who have acted as a Court of Protection deputy may be interested to hear of a refund scheme, launched by the Ministry of Justice for fees paid between 1 April 2008 and 31 March 2015.

Deputyship assessments and annual supervision fees were overcharged by the Office of the Public Guardian for England and Wales (OPG) during this period.

Court of Protection deputies act on behalf of those who lack mental capacity. Deputies can be professionals, or friends or family members, commonly where an individual is suffering from dementia or brain injury and unable to manage their finances without assistance and there is no attorney in place.

Refunds will automatically be made where the deputy is still acting. Those who may be eligible to claim the refund will be individuals or attorneys of people who have regained mental capacity and the personal representatives of people who had a deputy during this period but have since died.

The refund application form can be found online: https://www.gov.uk/deputyship-refund/how-to-claim.

The refunds need to be claimed before October 2022 to avoid the entitlement being lost.This refund scheme follows the OPG’s Lasting and Enduring Power of Attorney refund scheme which covers registration fees paid between 1 April 2013 to 31 March 2017.

The power of attorney refund scheme runs until 1 February 2021 and many millions of pounds still remain unclaimed.

To discuss Powers of Attorney or acting as a Court of Protection deputy, call Sophie Fenn at The Wilkes Partnership on 0121 733 8000 for further information.

employmentteam

Sarah Begley is an Employment Solicitor based at our Solihull office. In this article she looks into Special Leave Policies and how such policies can be mutually beneficial for employers and employees.

As the number of employment claims made in tribunals continues to rise since the abolition of employment tribunal fees in July 2017, companies need to be more wary of creating an environment which is not only great to work in, but anticipates and understands the way that the world is changing. This is not simply a case of updating the employee handbook, but one of developing policies and reviewing contracts that commit to ink the intentions a company has towards equality and acceptance.

Every year, it seems that there are cases and laws being made to bring the UK closer to accommodating different branches of culture and sub-cultures.

With this ever changing social climate, forward thinking employers have an opportunity to anticipate legal change and create policies to place themselves ahead of other employers. By creating a ‘special leave policy’ they can accommodate the needs of those cultures which have not yet been considered by legislation, and anticipate those that soon will.

This will not only protect the employer by ensuring there is a formal method in place to fight against discrimination claims (s16(2) Equality Act (EQA) if an employer treats an employee less favourably in relation to absence for gender reassignment than it would for any other sickness absence) but make a major statement about how inclusive a workforce they want to create, giving protections to those who may have felt vulnerable before.

A ‘special leave policy’ that does cater for this could be flexible and up for regular debate in the HR department and then taken to the boardroom. Suggested inclusions could be death of a relative, serious ill health of a relative, domestic emergency, public duties, volunteering, mentoring, infertility treatment, gender reassignment, elective surgery (caution underlying mental health issues) or death of a family pet.

Many of these are allowed by employers, but it is very uncommon that anything is written into a formal policy. For instance, there is no right in law to take paid time off for jury service or medical appointments. Even when taking time off for these regular occurrences, employers and employees can be left in a vulnerable position, and one which is undesirable in today’s climate of rising employment litigation in tribunals.

We are living in an exciting time for social change, and employment law is moving to catch up, but as with any legislation it can be a slow process. If employers wait for this to happen then they could be leaving themselves behind. Yes, they may have the letter of law on their side, but the reputational damage that could be done is irreparable. This is why employers need to be forward thinking and accommodate for change before it happens.

If employers do this it is not just a legal or reputational defence, it is an opportunity to grow and retain good talent. And for employees, developing this sort of policy encourages inclusivity and an open forum to be able to make requests for time off that previously they would have shied away from or felt they couldn’t ask for. In this current climate, that is important for everyone concerned.

To discuss anything arising from this update, please contact Sarah Begley on 0121 733 4312 or via email at sbegley@wilkes.co.uk.

You can also contact any other member of the Employment Team on 0121 233 4333 or email us at employment@wilkes.co.uk