HR Policy, Birmingham Law Uk - The Wilkes Partnership

A former senior advisor for David Cameron has spoken out saying all employers should be made to pay a ‘Living wage’, which has sparked debate before the budget. Pam Sidhu, Head of the Wilkes’ Employment Team talks about the implications for Employers.

The “Living Wage” is not law. It is an hourly rate that is set independently and is purely voluntary for employers. It is calculated based on the cost of living in the UK; currently it is set at £9.15 per hour in London and £7.85 per hour elsewhere. Contrast this to the standard adult hourly rate set in law, known as the “National Minimum Wage” at £6.50 – which all employers must pay to adult workers as a minimum. There appears to be some pressure within the Government to make companies pay more to employees, in order to deal with poverty and boost the economy. Unfortunately there is no firm plan by the Government to increase the National Minimum Wage to the Living Wage, or to give any legal footing to the Living Wage at all.

In any case, adopting the Living Wage is not likely to be viable for most smaller businesses, as these businesses are already saddled with red tape and other costs, to a disproportionately higher level than larger businesses. There would need to be some significant incentives offered by Government for smaller businesses to adopt the Living Wage rate for their staff, particularly for those of their staff currently on the National Minimum Wage.

There are clearly benefits in offering better pay that is more in line with current living costs in the UK. Staff will feel more motivated at work and will be more willing to go the extra mile for their employers. However, given the lack of any incentives for smaller businesses, the Living Wage is likely to be the preserve of larger businesses which can better afford it.

If you have any query or would like assistance in developing your human resources policy, please call Pam Sidhu or your usual contact in the Employment Team on 0121 233 4333 for further information.

Consultant and Tax Specialist at Wilkes Philip Harrison writes for Finance Monthly about how a global outlook when it comes to tax planning is essential in a modern, and increasingly globalised world.

With the number of people emigrating from the UK tipping over 400,000 a quarter for the first time ever in 2019 and immigration rates comfortably over 600,000 a quarter, the movement of people out of and into the UK is high and once normality post-coronavirus returns so will the movement of people. The knock on effect for tax specialists is a vast and varied flow of inheritance money going across borders and a need for today’s skilled financial advisers to have access to knowledge of the tax laws in more than just their own country.

Over the course of more than three decades in private client work I have seen that as globalisation impacted the lives of many (if not most) clients, the work in tax changed. The frictionless trade borders coming in and then hardening as protectionism was enacted by some of the world’s major economic powers has seen families spread across borders and then get locked in by them. This has made cross-border transactions yet more difficult and convoluted.

A consequence of this movement of people is the increased movement of personal funds. Cross-border remittances are now worth more than foreign direct investment to lower middle-income countries with an estimated $689bn transferred across the globe in 2018, according to the World Bank.

The picture created is a complex web of currency passing over borderlines and weaving economies deeper into each other. This is before inheritance, which is usually the largest one-off transfer of assets made by a person, comes into question. And lifetime wealth transfers – for example through trusts – add another layer of complexity again.

This world in constant flux with borders opening and tightening and generations of families having migrated across borders leaves tax advisers in a difficult position. Unable to apply one strategy to a single estate planning case, we have to take account of multi-jurisdictional factors which mean that sensible measures in one place can cause problems in another.

The potential pitfalls became very apparent when I was advising on a trust structure for a family originally from the UK where the main beneficiaries had emigrated to Canada. In structuring distributions to the beneficiaries, it transpired that sensible planning for Canadian tax purposes was inefficient for UK purposes and vice versa.

This is where having the experience to seek out the right knowledge is vital. Personally, through years working in the international sector of the market, I have gained knowledge of a variety of tax systems and have to spot where foreign tax issues arise even though I do not advise on them. But as tax lawyers we know that knowledge is an entirely different thing to expertise and the ability to advise on the intricacies of tax models built over years.

It is because of this that I believe that one of the most useful aspects of working internationally isn’t just spotting an issue, but developing the overseas networks of trusted talent to rely upon for advice and collaboration.

The traditional model of being part of an international firm or an international network, surprisingly, can be no real advantage when it comes to taking overseas advice. In fact, it can be a disadvantage or a restriction as there is an obligation to use the offices of your own firm or network and they may or may not be the best people for the job. In this case, working with a UK-based firm such as The Wilkes Partnership is a liberation as I am free to involve whoever I think is right for the client and the advice required.

Having the knowledge to spot an issue and seek out the right expertise from within a jurisdiction is the skill when creating the right, sensible succession plan for clients.

Some of those issues can arise:

  • Where a UK client (without other overseas connections) has overseas assets
  • Where an overseas client (without other UK connections) has UK assets
  • Where an overseas client coming to the UK, or already here but only for a relatively short time, plans to remain for the longer term
  • Where an overseas client from certain countries (especially India and Pakistan) has been in the UK for a long time and has overseas assets or assets that can be transferred overseas
  • Where a UK client is emigrating or has already emigrated

It’s not just certain scenarios to be aware of when working internationally. There are, of course, some foreign tax systems that are especially difficult to navigate. For example, the USA has its estate or gift tax (like its income tax) based on citizenship not residence or domicile. And the taxes in some jurisdictions work on a very different basis to our inheritance tax and can be difficult to understand. For instance, the capital acquisitions tax in the Republic of Ireland falls into this category and given large numbers of UK residents have families in the Republic of Ireland this is an area that tax specialists must be aware of.

In contrast there are some are helpful jurisdictions like India and Pakistan, whose domestic tax laws give rise to tax planning opportunities in the UK.

The UK has a small number of estate taxes treaties with other countries (separate from the normal double tax treaties) but there are only ten of these.  Their main purpose is to prevent double taxation where the same assets could be subject to tax here and abroad.  Where there is no treaty, the UK gives unilateral relief for foreign tax but the conditions which have to be satisfied mean that it does not always work perfectly.

Four of the treaties are “old” (India, Pakistan, France and Italy) and in theory give rise to tax planning opportunities but in the light of the countries’ domestic tax systems, it is often only Indian and Pakistani clients who can avail themselves of these.

Finally, it is always essential when undertaking an international estate planning assignment to take account of other taxes as well as inheritance tax – e.g. capital gains tax – or their overseas equivalents.

As remittances increase, generations continue to migrate, and protectionism and globalisation fluctuate, cross-border tax will be a vital part of estate planning. This has created a climate where tax experts need to not only know their own jurisdiction, but also have the knowledge to see barriers and call in expertise from other jurisdictions. The world we now live in, and the one after coronavirus has reshaped the globe, requires tax experts to have access to more than just the knowledge within the confines of our own borders. In this climate, we need the personal connections overseas and the ability to foresee barriers if we are to deliver private and business clients the best service possible.

Philip Harrison is a consultant at Wilkes working across our Birmingham and Solihull offices Philip specialises in advising business owners and high net worth individuals on estate planning, involving the protection of family wealth as well as inheritance tax mitigation.

He helps his clients to devise a comprehensive estate planning strategy with the aim of taking maximum advantage of available tax reliefs, especially for business or agricultural assets.  He also manages the implementation of his clients’ estate planning strategies, which might involve direct gifts to children or grandchildren or the creation of family trusts or family investment companies.

If you have any questions regarding this update you can contact Philip on pharrison@wilkes.co.uk or 0121 233 4333.

Following the COVID-19 outbreak, we have been approached by many clients wishing to prepare or update their existing Wills and put in place Lasting Powers of Attorney (“LPAs”).

Can I still make a Will or LPAs despite the lockdown?

It has been declared that lawyers who prepare Wills are key workers and so we have continued operating during this time. We will initially take instructions for your Wills and LPA’s via telephone or video-streaming services such as Skype and Zoom so that we can fully understand your needs.

We will then send your draft Will or LPAs to you for your approval via email or post. We are on hand to answer any further questions or queries you may have regarding the drafts to ensure you receive the high-quality and tailored legal advice you would in a face-to-face meeting.

How do I sign my Wills and LPAs?

Under Wills Act 1837, a Will must be signed in the presence of two independent witnesses. Whilst the Law Society and the Ministry of Justice are considering relaxing these requirements, there has been no changes yet. We can provide you with detailed instructions about how you must sign your Will to ensure that it is valid whilst complying with government guidance for social distancing.

We are also happy to oversee the Will signing ourselves providing this is outdoors, either at your home, or by advance arrangement, at either our Birmingham or Solihull offices/ other outside spaces, whilst of course, still recognising the social distancing rules.

Similarly, LPAs must be signed in the presence of an independent witness and then certified by a certificate provider of your choice. We are happy to provide information and answer any questions you have regarding how this can be achieved by you independently or in our presence whilst still following the social distancing rules.

Members of our Private Client Team have prepared various video guides which talk about the importance of a Solicitor drafted will and also The Court of Protection & Lasting Powers of Attorney. You can watch these using the links below.

The Importance of a Solicitor Drafted Will – Watch here

The Court of Protection & Lasting Powers of Attorney – Watch here

If you would like to enquire about preparing a Will or Lasting Powers of Attorney please contact Ellie Holland on 0121 733 8000 or eholland@wilkes.co.uk.

In this article Kate Campbell-Gunn, Associate Solicitor in our Birmingham Personal Injury & Clinical Negligence Team discusses the difference between primary and secondary victims.

Personal injury law recognises two sorts of victims, primary and secondary victims.  A person who is injured or even killed by another’s negligence is a primary victim.  In a medical perspective this would be a patient harmed by their medical treatment.  However, a primary victim’s immediate family member may become a secondary victim, if they actually witness the negligence and then suffer psychiatric injury.

The law sets down a strict criteria for secondary victim claims:
  • It was reasonably foreseeable that a person of normal fortitude would suffer from a psychiatric injury
  • The secondary victim has a sufficiently close relationship with the immediate victim
  • There was sufficient proximity to the accident &
  • The psychiatric illness was caused by shock as the result of the sudden appreciation of a horrifying event.

The case law to date has found against secondary victims claiming psychiatric damage when a prolonged period of time has passed on the basis is does not satisfy the proximity test. However, in the recent case of Paul v Royal Wolverhampton NHS Trust, children of a man misdiagnosed some 14 months prior witnessed his death when out on a shopping trip.

At first instance, the Judge held against them however on appeal it was found that the event was sufficiently shocking to them and caused them to suffer psychiatric injury and as there was a direct link between the negligence and them witnessing the death, they could claim.

Situations where this may occur are:
  • A patient is given emergency treatment and on returning to ICU, where their wife is waiting, the wrong injection is administered negligently and causes a fatal allergic reaction.  Witnessing that tragic event caused the wife psychological injury who may pursue a claim as a secondary victim.
  • A patient is given negligent treatment which causes their condition to deteriorate and possibly death or severe disability.  Witnessing a loved one worsen over time may be sufficiently traumatic to trigger a recognised psychiatric disorder.
Birth and Secondary Victims

Secondary victim claims occur more commonly in the labour and delivery suite.  Where an expectant Mother or new born baby is injured or sadly dies due to a hospital’s negligence, the consequences are devastating for the whole family.

Often new Mums choose a birthing partner to be with them every step of the way in their labour.  This is usually a partner or parent and if they witness a horrifying event leading to their psychological injury, they can become secondary victims.

Kate comments; ‘The case of Paul very much turned on the specific facts and there still exists a strict criteria for establishing a secondary victim claim, however this case goes some way into recognising that, particularly in relation to medical treatment, often there can be some time passed between the negligence and the loss. This allows for more scope when considering secondary victim claims.

Kate has advanced and successfully concluded various secondary victim claims including a claim by a daughter after witnessing her mother shortly after death following a fall from a bed and a claim by two parents and a close aunt in a claim for the mis-diagnosis death of a child from sepsis.

If you have any questions in relation to this article or have any other Personal Injury related queries please contact Kate Campbell Gunn on 0121 733 4314 or email kcampbell-gunn@wilkes.co.uk.

Our Personal Injury Team are on hand and working across both our Birmingham & Solihull Offices. In light of the current situation surrounding COVID-19 The Wilkes Partnership Solicitors are offering a complimentary, no obligation initial consultation designed to help you understand any issues facing you or your business and help you map out the best route forward.

To take advantage of this offer please call 0121 733 4303 or email helpline@wilkes.co.uk

In this video Ann-Marie Aston, Partner & Court of Protection Lead and Sophie Fenn, Associate Solicitor at Wilkes answer some frequently asked questions about The Court of Protection and Lasting Powers of Attorney.

If you have any questions in relation to any matter arising from this video update please contact aaston@wilkes.co.uk or call us on 0121 233 4333.

As part of our COVID-19 Helpline & Resource Centre we are offering a no cost, no obligation, initial consultation to businesses and individuals affected by COVID-19. Please email helpline@wilkes.co.uk to take advantage of this offer or call us on 0121 733 4303.

As the UK starts to turn its attention to life after lockdown and businesses begin to reopen, the need to adhere to social distancing remains. For businesses to be able to comply with these measures more space will be needed. Proposals to encourage local authorities to close high streets and redirect traffic away from town centres have encountered opposition.

Leenamari Aantaa-Collier, Partner and Head of the Planning & Regulatory Team at Wilkes explores how these much-needed changes are set to impact towns and cities across the UK.

Current proposals aim to make social distancing easier and create more room for walking and cycling, as well as providing the extra space businesses need to continue trading. The challenge being that in our already crowded towns and cities the only additional space is on local roads, including high streets.

“Traffic Regulation Orders (TRO’s) are orders issued by local authorities allowing them to close roads and redirect traffic. The solution that the government has implemented has been to amend the current TRO procedure, streamlining the processes so councils can speedily apply TRO’s within a week of notification” says Leenamari.

“Traffic modelling, particularly in smaller towns and cities is complex, and the speed at which these orders can be issued will not allow adequate time for this. Therefore, traffic will be pushed into the surrounding residential areas creating increased congestion and problems for local businesses.

The safety of schoolchildren, the elderly and all vulnerable groups using narrow roads and pavements also needs to be considered. In some of the smaller towns around the West Midlands such as Kenilworth, Warwick and Knowle, these orders may not be practical at all.”

Leenamari continues: “Shopkeepers, food and hospitality businesses have been working hard to keep their businesses operating, many rely on large deliveries which will no longer be able to easily access business premises. Others who have moved to a click and collect service, and restaurants and pubs who have diversified to deliver food or become a takeaway, may have to close again if vehicles are banned from the High Street.”

Creating a balance

“Careful consideration needs to be given regarding the use of TRO’s to ensure they are not detrimental to local residents and businesses. If the traffic can’t get to the towns and cities due to poor traffic management, that could potentially be more detrimental for businesses and in turn the wider economy than the issue around lack of space.

Of course, safety needs to be paramount, but councils should look at creating a flexible hybrid solution which benefits all involved. This could be implementing temporary closures during busy times such as peak shopping hours and weekends, implementing a one-way system or using car parking space to create wider footpaths.”

If you require any advice on a Planning & Regulatory issue please contact Leenamari-Aantaa Collier on 0121 710 5934 or laantaa-collier@wilkes.co.uk.

In light of the current situation surrounding COVID-19 The Wilkes Partnership Solicitors are offering a complimentary, no obligation initial consultation designed to help you understand any issues facing you or your business and help you map out the best route forward.

To take advantage of this offer please call 0121 733 4303 or email helpline@wilkes.co.uk

In this video Kevin Lynch, Head of the Probate Litigation team at Wilkes answers some frequently asked questions around probate litigation including the Inheritance Act and Caveats.

If you have any questions in relation to any matter arising from this video update please contact klynch@wilkes.co.uk

For the duration of the coronavirus pandemic, a large number of working people in the UK have seen their income decrease and the future of their jobs uncertain. This has been a particularly unsettling time for those who are self-employed who do not have the protection of an employer to lean on in this time of need.

As of 13 May 2020, the government has launched a significant support package to help self-employed workers known as the ‘Self Employed Income Support Scheme’ (SEISS).

The SEISS scheme allows for self-employed workers to apply for a grant worth 80% of their average monthly trading profits to help them cope with the financial impact of coronavirus. This is averaged over the last 3 tax years and subject to a maximum of £7,500 per month.

The rules for working out average pay are complicated. But if you are potentially eligible for the grant HMRC will make contact directly and invite those who qualify to submit a claim. HMRC will also work out your average monthly profits for the purposes of the scheme.

The SEISS scheme is now a part of package of measures target to assist the self-employed. Those measures include:

  • Suspending the minimum income threshold to gain access to Universal Credit
  • Deferring Self-Assessment income tax payments
  • Deferring VAT payments
  • Emergency business loans in the form of:
    • the Business Interruption Loan Scheme
    • the Bounce Back Loan

HMRC estimates that 3.8 million self-employed workers could qualify under the SEISS scheme.There are useful on-line guidance notes produced by HMRC which you can read here.

There is also an online tool for self-employed individuals to check whether they are eligible.

Jas Dubb comments “The SEISS scheme comes as part of a raft of measures taken by government to try and stabilise the economic fallout from the COVID 19 pandemic.  Sensibly the government has had to look at the full spectrum of the UK workforce to provide targeted support to prop up the economy.”.

For any further guidance in relation to this update, or any other employment law related matter, please contact Jas Dubb on 0121 710  5929 or any member of the Employment Team at The Wilkes Partnership Solicitors at employment@wilkes.co.uk.

On Sunday 10 May 2020 the UK Government announced a “road map” to recovery in relation to the ongoing Coronavirus pandemic that hit the country in March this year.

As the lockdown restrictions are eased businesses will face different challenges ranging from getting staff back to work and decisions on when to relax furlough leave and whether there is a need around cutting costs and making redundancies.

James Leo, Head of Employment Law at The Wilkes Partnership considers the guidance on offer to assist employers, businesses and their staff in returning to work after lockdown.

Returning to the workplace

While it is advised employees who can work from home continue to do so, the government’s plans for returning to the workplace continues to emerge. This includes specific guidance for eight different sectors including construction, other outdoor workers, warehouses, labs and research facilities, contact centres and offices. Other guidance considers working in other people’s homes such as cleaners, restaurants offering takeaway or delivery, shops and similar environments and people who work in or from vehicles.

It is important for businesses to ensure they can meet a certain criteria before allowing their employees back to the workplace. This will include questions such as:

Is it essential?

As stressed by the government if people can continue to work from home they must continue to do so for the foreseeable future.

Is it safe?

Employers have a duty of care to manage and identify risks. This is to ensure it is safe to return to work and that there are sufficient safety measures in place such as protective equipment (e.g. gloves, hand sanitiser). In line with government guidance, social distancing measures are still in place and employers need to determine whether the two meter rule can be maintained. Employers are urged to take their time with gradual returns to work to test health and safety measures in practice and ensure they can work with larger numbers.

Is it mutually agreed with employees?

There should be a clear dialogue between employers and their staff. This can address any concerns employees may have such as travelling to and from work. Flexibility is required on both sides to accommodate working times and managing risks. Employers should be aware that some employees may not feel comfortable returning to work at this early stage. It may be that this will gain a great deal of friction in the coming weeks and months.  If not handled carefully, the issue may lead to claims for disability discrimination under the Equality Act 2010 (“EA 2010”), constructive dismissal, unfair dismissal for health and safety issues under the Employment Rights Act s100 (“ERA 1996”) and detriments suffered as a result of not attending work due to health and safety concerns under s44 ERA 1996.

In particular Under s100(1)(d) and (e)  ERA 1996 an employee will be deemed as unfairly dismissed if the principal reason for dismissal is that in “circumstances of danger which the employee reasonably believed to be serious and imminent”.  Employers should listen to their employees’ concerns about returning to work, consider whether the employee in question suffers from any underlying medical condition which makes them vulnerable to the virus and also to consider if they suffer from a disability requiring adjustments to be made.

Short-term working/ Redundancies

The government furlough scheme has been extended to October 2020. When planning a return to the workplace, a business may decide not all of the existing workforce will be needed.

This may create a situation whereby it starts to consider:-

  • Reduced working hours
  • Continuing furlough leave for employees
  • Furloughing other members of staff
  • Recruitment freezing
  • Redundancy
Reduced hours 

Employers may want to consider reducing the working hours for staff if there is a reduced level of work upon returning. This is usually considered  a temporary measure and should be agreed in writing.

Further furlough

Employers should check their furlough letter to individual staff in order to see if it included a specific date for return and whether a specific percentage salary payment was included. If employers wish to continue to keep employees furloughed it may be worth updating their letters in order to make further updated agreements with staff for the continuance of furlough leave and payment rates.

Redundancy

Employers may not be able to continue trading or there may only be enough business for significantly fewer staff. This may create a need to consider redundancy planning. Employers need to ensure that they follow correct procedures and apply them fairly. Employees have rights in a redundancy situation.

James Leo comments: “Given that the nature and timing of any further relaxation of restrictions is uncertain, it is sensible for a business to consider all options and have the capability to move quickly from one scenario to another”.

For any further guidance on this issue or any other employment related matter, please contact James Leo or a member of the Employment Team at The Wilkes Partnership Solicitors. Alternatively email us at employment@wilkes.co.uk.

In this video Andrew Hasnip & Ellie Holland, Partners in the Private Client Team at Wilkes discuss with Helen Smart, Solicitor in our Corporate Team, the importance of a Solicitor drafted Will. Alongside this we also discuss how you can still make a Will in light of the current social distancing measures taking place due to COVID-19.

If you have any questions in relation to any matter arising from this video update you can contact Andrew Hasnip on 0121 710 5830 or ahasnip@wilkes.co.uk or Ellie Holland on 0121 733 4334 or eholland@wilkes.co.uk.

As part of our COVID-19 Helpline & Resource Centre we are offering a no cost, no obligation, initial consultation to businesses and individuals affected by COVID-19. Please email helpline@wilkes.co.uk to take advantage of this offer or call us on 0121 733 4303.