We are delighted to have launched our new website, fresh for 2019, that will allow visitors and clients to interact with Wilkes in a smoother and more efficient manner across all devices.

Our new website has been designed to offer the ultimate user-friendly experience with improved navigation and functionality whilst allowing visitors to find out about the full range of services here at Wilkes, and the skilled teams that deliver them.

The site’s new and improved news section will provide visitors with an up-to-date, reliable source of legal news for both businesses and individuals.

We will also be maintaining our German website and are in the process of working towards a site wide translation tool that should be available from the Spring.

We would love to hear your thoughts on our new website. Please get in touch on Twitter @WilkesLaw or email us on marketing@wilkes.co.uk with your comments and feedback.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusions

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

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

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

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

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

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

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

Increased Employment Tribunal claims putting strain on dwindling resources

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

The future of Employment Tribunal Claims

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

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

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