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

Specialist tax and estate planning lawyer Philip Harrison has joined The Wilkes Partnership as a Consultant in our Private Client Team

Specialist tax and estate planning lawyer Philip Harrison has joined The Wilkes Partnership in a consultancy deal designed to bolster our offering to private clients and the owners of private businesses.

Philip, whose previous experience includes roles such as National Head of Tax for global law firm Eversheds will play a key role in the growth of our private client and tax team and help take our firm to the next level of UK and international tax expertise.

In his new role at Wilkes, Philip will bring more than three decades of experience advising business owners and high net worth individuals on personal tax planning , especially in the fields of capital gains tax and inheritance tax, and more general estate planning, an area of specialisation which includes the protection of family wealth as well as tax planning.  Philip has particular expertise in advising internationally mobile clients.

This latest addition to Wilkes enhances the private client team and is part of a long-term growth strategy which aims to increase expertise across all areas of the firm. Philip’s arrival follows the firm’s recent merger with fellow Birmingham firm Coley & Tilley.

Nigel Wood, Senior Partner at The Wilkes Partnership, says: “Philip’s consultancy with Wilkes shows the scale of ambition that we have to service our clients, new and existing, to an increasingly higher standard. Philip’s expertise continues to enhance the talent in our Private Client Team and, following the addition of other talent across the firm, take the next step on our road to growth in 2019 and beyond.”

Philip Harrison, Consultant for The Wilkes Partnership, says: “I was seeking an opportunity to build a relationship with a successful law firm and from the outset the cultural match with Wilkes seemed ideal for me. The association will enable me to offer a high level UK and international tax and estate planning service to complement the services already offered by the firm.”

“I am looking forward to working closely with Andrew Hasnip and Ellie Holland to continue to build the team at Wilkes and help fulfil the overall objective of consolidating and developing Wilkes’ position as a leader in the region, offering private client services across the spectrum and focusing in particular on UK and international tax advice.”

Philip can be contacted on 0121 233 4333 or pharrison@wilkes.co.uk.

On 17 December 2018 the Government published, its proposals to take forward some of the recommendations in the Taylor Review of Modern Working Practices (the ‘Good Work Plan’).

The Good Work Plan proposed what the Government described as “the biggest package of workplace reforms for over 20 years”. It sets out the Government’s vision for the future of the UK labour market and draws on the four consultations held earlier in 2018.

The Employment Rights (Miscellaneous Amendments) Regulations 2019 (SI 2019/731) (the ‘Regulations’) was introduced on 28 March 2019 and will bring into force various commitments set out in the Good Work Plan.

Jas Dubb, Associate Solicitor in our Employment Law Department considers the key proposals under the plan and what effect they may have.

Employment Status

The Government has declared that it will introduce new legislation to clarify the test for obtaining employment status that mirrors modern working practices. That clarification is important. Having ‘employee’ status attracts a considerable amount of legal protection and rights. However, creating a test is likely to be a difficult task. The Government has stated that it will also seek to adjust how the law deals with employee status for tax purposes, with a view of harmonising the law in both areas. No set timetable has been given for these potentially significant proposals for new legislation.

Written Statement of Particulars of Employment

The Employment Rights Act 1996 will be amended to give workers, rather than just employees, the right to:

  • a written Statement of Particulars of employment (i.e. a basic Contract of Employment); and
  • bring a tribunal claim against their employer for failure to provide such particulars.

The changes will apply to workers who start work for an employer on or after 6 April 2020.

Financial penalties

The Regulations will amend the Employment Tribunals Act 1996 to increase the maximum level of penalty an Employment Tribunal may order in respect of an employer’s aggravated breach of employment law from £5,000 to £20,000. The increase will apply in respect of breaches of workers’ rights that take place on or after 6 April 2019.

 Information and consultation of employees

The Regulations will amend the Information and Consultation of Employees Regulations 2004 (SI 2004/3426) to lower the percentage required for a valid employee request for the employer to negotiate an agreement on informing and consulting its employees. The threshold will be lowered from 10% to 2% of the total number of employees employed by the employer, subject to there being a minimum of 15 employees.  The change will come into force on 6 April 2020.

Jas Dubb comments, “These proposed changes serve as a useful reminder to employers of the importance of having employment documentation and policies in place which set out clear expectations, and in line with legal obligations. It is evident that more needs to be done in order to protect employees and prevent employee / employer disputes”.

We are currently offering all businesses a Free Employment Law Health which consists of a no obligation review of your existing employment contracts and staff handbooks.

Please contact us if you would like us to review your employment documentation and structure them in line with legislative requirements, to avoid employment issues from arising.

To discuss anything arising from this update, please contact Jas Dubb on 0121 733 5929 or via email at jdubb@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

Three Former Trainees Qualify Into NQ Positions At Wilkes

Wilkes are delighted to announce that Rupinder Sahota, Owen Shave and Tim Burrows have taken up new roles as Assistant Solicitors having successfully completed their training contracts.

Rupinder joins our Property Litigation team with Owen joining our Corporate team and Tim joining the Private Client department.

Kate Hackett Partner and Training Principal at Wilkes said;

“2019 has been another strong year for Wilkes and we are delighted to be able to offer Rupinder, Owen and Tim positions within the firm. We feel that we offer our trainees great hands-on experience which allows them to hit the ground running with their legal careers.”

Alongside welcoming our new newly qualified solicitors, Ayesha Sirpal, Jack Milnthorpe, Joel Blake and Sophie Raybould have joined the firm as first year trainees.

To find out more about out becoming a trainee as Wilkes click here.

Jack Ackrill - British Wills and Probate Awards The Wilkes Partnership Solicitors, Birmingham & Solihull

Jack Ackrill, Solicitor in the Contentious Probate Department at The Wilkes Partnership has been short listed for the title of Young Practitioner of the Year at the prestigious and nationally contested British Wills and Probate Awards 2019.

This is the next stage of Jack’s journey since joining The Wilkes Partnership as a trainee and becoming a newly qualified solicitor with the firm at the end of last year. He will now wait until 17 October 2019 for the winner to be announced at the Belfry Hotel and Resort, Sutton Coldfield.

Jack Ackrill, Solicitor in the Contentious Probate Department at Wilkes, says: “Getting to the last three at the National Wills and Probate Awards to be named the best in the UK is fantastic.

“I’ve been working hard with the team at Wilkes and it has taken a lot of hard work, drive and support from the people around me to get me here.

“Getting to the final three is a great achievement, especially given the level of quality that would have undoubtedly been put forward by other firms. It has been a steep learning curve, but with the support I’ve had since joining as a trainee I really feel that I’ve excelled here.”

The Young Practitioner of the Year Award recognises an under 30 who has shown themselves to be an exceptional individual with a high level of involvement and development within the sector or area of practice. 

Kevin Lynch, Partner at Wilkes, says: “This award was created to search for exceptional individuals and I have no doubt that Jack fits into that category. I have had the pleasure of seeing him grow as a person and legal practitioner within our Will Disputes & Contentious Probate team.”

“This nomination is a reflection of his hard work, professionalism and dedication to achieving the highest standards in the legal practice. He has been a vital part of the team during a time of great growth for the Contentious Probate team at Wilkes working on high profile cases that require talent and technical expertise. We’ll all be there to cheer Jack on while he waits to hear whether he has won this prestigious award.”

Wilkes has set itself an ambitious target of raising £10,000 in the next 12 months for Acorns Children’s Hospice, our chosen charity for the year.

Ann-Marie Aston, Partner and Head of CSR at Wilkes, said: “It is fantastic to have the opportunity to work with Acorns Children’s Hospice as our charity of the year. Myself and the rest of the CSR team are busy putting the finishing touches to a busy schedule of fund-raising activities over the next 12 months!”

Acorns Children’s Hospice provides specialist palliative care to babies, children and young people with life limiting and life threatening conditions across Birmingham and the Midlands, as well as support for their families.

It costs £27,000 per day to provide Acorns care and services and the charity relies heavily on local businesses and the community to fund the majority of this amount. In the past year, the charity has cared for more than 780 children and supported over 1,220 families, including those who are bereaved. Funds raised by Wilkes will go towards helping the hospice staff with this vital care.

Vicki Rowles, Head of Partnership Fundraising at Acorns Children’s Hospice, said: “We are delighted that The Wilkes Partnership has chosen Acorns as its charity of the year. We simply wouldn’t be here as a charity without the support of local businesses like The Wilkes Partnership and the community.”

“Its support will help us continue our work to caring for children and families. We look forward to supporting Wilkes with its fundraising efforts over the next year and developing what I’m sure will be a great partnership.”

To find out more about how you can support Acorns, visit: www.acorns.org.uk/support.

The use of Non-Disclosure Agreements (NDAs) to cover up claims of sexual harassment and discrimination may become a thing of the past, says Jas Dubb, Employment Law specialist at The Wilkes Partnership.

When a member of staff leaves an employer, the company may seek to enter into a legally binding settlement agreement, in which the employer will often insist upon a confidentiality clause (which is a form of non-disclosure). A settlement agreement is an agreement whereby the employee agrees not to issue any claims against the employer usually in exchange for an agreed sum of money. Entering into a settlement agreement, containing stringent confidentiality terms, effectively buys an ex-employee’s silence.

The use of settlement agreements to settle allegations of sexual harassment and discrimination in the employment field has come in for considerable public debate of late. Many ex-employees have said they had little option but to consider the settlement route. The lack of affordable legal advice, the legal costs and relatively low compensation awards and the fear of being ‘blacklisted’ from future employment have deterred them from bringing an Employment Tribunal claim.

Earlier this year the Telegraph reported on several alleged cases involving Sir Philip Green, owner of high street brands including Top Shop, Dorothy Perkins and Burtons. Sir Philip tried to prevent The Telegraph from publishing the allegations but ended up with a £3 million legal bill and the details were published anyway.

Billionaire Sir Philip is facing ongoing allegations of sexual misconduct and racist behavior from a number of former members of staff. He is reported to have paid them vast sums – up to £1 million to keep them quiet through the use of NDAs.

Such high profile cases have intensified the call for reforms in the use of the law concerning NDAs. The House of Commons Women and Equality Committee has recently produced a further report entitled ‘The Use of Non-Disclosure Agreements in Discrimination Cases’.

Whilst acknowledging the many protective aspects of Non-Disclosure Agreements for employees as well as employers the report highlights a number of potential downsides with the continued blanket use of NDA, including:

  • their use to cover up unlawful discrimination and harassment allowing management behaviour and organisational culture to go unchallenged and unchanged
  • they can enable perpetrators to go on to harass and discriminate against others and prevent victims of such behavior from knowing about or supporting other complaints
  • they make employers complacent allowing them to avoid investigating unlawful discrimination or harassment complaints and holding perpetrators to account
  • they are being traded for things that employers should be providing as a matter of course such as references and remedial action to tackle discrimination.

This report makes a number of recommendations on preventing and dealing with sexual harassment and discrimination in the workplace including:

  • stopping the use of confidentiality clauses to cover up allegations of sexual harassment and discrimination
  • a requirement for the use of plain English in confidentiality clauses
  • one-way cost shifting so the employer is more likely to be ordered to pay the employee’s costs in the event of a successful Tribunal claim
  • an increase in damages for pain and suffering
  • requiring employers to pay the cost of employees seeking legal advice on settlement agreements
  • strengthening of corporate governance requirements, forcing employers to face up to their responsibility to protect employees from harassment and discrimination

For advice on any employment related matter and to discuss our Free Employment Health Check for your business please contact Jas Dubb at The Wilkes Partnership on 0121 233 4333.

Does an individual’s right to the freedom of expression take precedence over confidentiality obligations owing to their employer?

No, was the decision of the High Court in the case of, Linklaters LLP v Mellish.

Lisa Moore, Employment Solicitor in our Birmingham Officeconsiders the outcome of this recent case which balances the Articles of the European Convention on Human Rights (‘Convention rights’) against the duty of confidentiality.

In this case, Mr Mellish was employed by Linklaters as Director of Business Development and Marketing. He was subject to an express confidentiality provision as detailed in his contract of employment. Following the termination of his employment, Mr Mellish notified his ex-employer that he planned to, ‘share his impressions of the current culture at Linklaters’ along with what was described as, ‘the ongoing struggle Linklaters has with women in the workplace’ and provided various examples of his concerns.

Consequently, Linklaters issued an application for an injunction to restrain disclosure of confidential information; namely, to protect the names of the individuals involved along with some details relating to the relevant matters. The confidential nature of these issues were such that they were not set out in the body of the Court’s transcript and instead were attached as a confidential Annex to the Judgment.

The High Court considered whether, in all the circumstances, it was in the public interest that the duty of confidence should be breached. It was also noted that other Convention rights could be relevant in the circumstances such as the right to privacy of the third parties who could be named by Mr Mellish.

The Court ultimately decided to grant a temporary injunction despite this conflicting with the right to freedom of expression to which Mr Mellish was entitled. Several factors formed the basis of this decision.

Firstly, the Court felt that the matter would have good prospects of success should it proceed to trial. Secondly, there was a clear risk that highly sensitive information could be published. The rights of the third parties involved were also highly relevant to the Court’s decision. It was considered that reputational harm was not the primary motivating factor for Linklaters having applied for the injunction. If it had been, it was far less likely that the injunction would have been granted.

Lisa Moore comments: “Although applications for injunctions are considered on a case by case basis, employers should seek some comfort from this decision. The High Court is clearly willing to override Convention rights to prevent the disclosure of confidential information where necessary. This decision also serves as a reminder of the importance for employers to adopt appropriately drafted confidentiality provisions to protect their position as far as possible. An employer is in a much stronger position whenever attempting to enforce an express term of a contract rather than just relying on an implied term.”

For more information about how we can help assist your business in respect of the above issues, from drafting appropriate confidentiality provisions and restrictive covenants, to obtaining an injunction, please follow the link to our Business Protection Package.

Otherwise, to discuss anything arising from this update, please contact Lisa Moore or any member of the Employment Team on 0121 233 4333. 

Steve Dymond was found dead on 9th May a week after filming the show, during which he took a lie detector test.

A lie detector, or a ‘polygraph monitor’ is a machine that senses the person’s breathing rate, their pulse, blood pressure and perspiration.

Jackie Lee, Solicitor in the Family Team at Wilkes said “ A lie detector cannot be admitted as evidence in the family court as the results of the detector are not reliable and cannot be used as evidence as different people react differently to lying”.

“When evidence is given in the Family Courts, the witness is usually given the opportunity to set out their position in a witness statement and attach documents in support. They will be required to sign a Statement of Truth. On the day of the Final Hearing, the witness has an opportunity to confirm the contents of their witness statement in person. The opponent or his/her legal representative has the opportunity to ask the witness questions and cross examine them, the Judge will decide,  “on the balance of probabilities” based on the evidence he/she has heard, whether the evidence given by the witness was convincing.

Mrs. Lee further added ‘ evidence is usually given in private in the Family Courts to protect the family’s interests, although there may be some cases when they are allowed to be reported if the Judge permitted.

For further advice in relation to a family related matter, please contact Jackie Lee on 0121 785 4443 or email jwlee@wilkes.co.uk