Employment Law | Birmingham & Solihull Sollicitors

In a revolutionary decision of an Employment Tribunal sitting in London in the case of, Dewhurst v Revisecatch & City Sprint, employment Judge Joffe has held that TUPE applies to ‘workers’ as well as to traditional ‘employees’.

The definition of ‘employee’ is defined within regulation 2(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) as, ‘any individual who works for another person whether under a contract of service or apprenticeship or otherwise’. It is the phrase, ‘or otherwise’ that Judge Joffe applied to include ‘workers’ to fit the definition of ‘employee’ for the purposes of TUPE.

Established case law within the European Courts has given discretion to national courts when interpreting the meaning behind ‘employee’ for the purposes of TUPE. UK legislation under the Employment Rights Act 1996 (‘the ERA’) defines an employee as, ‘an individual who has entered into or works under… a contract of service or apprenticeship’.

The Dewhurst case regarded cycle couriers who had contracts to provide services to a company (and were considered to be contractors rather than employees). The Claimants brought various claims against the Respondents including claims under TUPE for a failure to inform and consult with them about the transfer. A strong argument was put forward as to the differences between contracts for services and contracts of services. However, it was to no avail.

In the end, Judge Joffe ruled that a ‘worker’ within the meaning of the ERA and regulation 2(1) of the Working Time Regulations 1998 is an ‘employee’ within the meaning of regulation 2(1) of TUPE.

Pam Sidhu, Senior Associate in our Employment Team comments, “Previous to this case, it was always arguable that workers may be covered under TUPE, given the reference to “or otherwise” in definition of employee in TUPE. Some previous case law also suggested that TUPE applied to workers, not just employees. This case adds strength to the argument that workers now have TUPE rights; however note that they will still not qualify for unfair dismissal and redundancy pay rights (which are “employee” rights only).  Also, it is still the case that genuinely self-employed consultants will not be covered by TUPE. The case is an interesting one and opens the door for Employment Tribunals to possibly narrow the difference between who is an employee and who is a worker for other purposes, and throws into yet further spotlight the rights of workers and the gig economy”.

Lisa Moore, Associate in our Employment Team comments: “As a result of this decision, parties involved in a transaction where TUPE is likely to apply should take particular care when considering which members of staff are likely to be affected. It is, however, important to be mindful that, as this decision was made at first instance by an Employment Tribunal, it is only persuasive rather than being binding as things stand.  I anticipate that the decision may well be appealed in due course. We will provide further updates as the matter progresses.”

Our Employment Team would be happy to assist with any queries you may have relating to either TUPE or employment status.

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

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.

The Wilkes Corporate team, led by Gareth O’Hara have advised long-standing Automotive client Johnsons Cars on its recent acquisition of four Volkswagen dealerships.

This recent acquisition will see Johnsons take over showrooms in Warrington, Liverpool, Stafford and Stoke which will increase Johnsons VW portfolio to nine dealerships across the UK taking them up to 46 dealerships in total.

Johnsons already has Volkswagen outlets at Birmingham and was selected by the brand in 2017 to run its first pilot ‘store’ at the Bullring shopping centre, a deal which was also advised on by the Wilkes Corporate Team.

Gareth O’Hara, Managing Partner and Head of the Corporate Team at Wilkes said: “As ever it’s great to be working with the team at Johnsons Cars on their most recent acquisition. It’s exciting to be involved with the business and we are delighted to be a part of their continued growth. At Wilkes we are all about long-standing client relationships and we look forward to working with Johnsons again on future acquisitions”.

Mike Berwick, Operations Director at Johnsons Cars commented: “We greatly appreciate the relationship we have with Gareth and the rest of the team at Wilkes. Their understanding of our business, and the retail car business generally, makes what can often be a time consuming and challenging process more straight forward. Wilkes are very used to our approach and method of doing deals.”

This is the latest in a growing line of M&A work for The Wilkes Partnership, following the completion of deals across a range of sectors including Automotive, IT Software, FMCG, Events and Health & Social Care.

Gareth was supported on the transaction by Mark Hodgson (Real Estate), Mike Linford (Corporate) & Lisa Moore (Employment).

For help and advice relating to your business get in touch with Gareth O’Hara on 0121 710 5904 or via email at gohara@wilkes.co.uk.


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


KidsOut Large

Once again, this Christmas, Wilkes staff are sacking Secret Santa and swapping novelty mugs and reindeer antlers to buy toys for deprived children in the region in support of KidsOut’s Giving Tree Appeal 2019 – and are urging all Midlands businesses to get involved.

Rick Smyth, Corporate Partner at Wilkes and co-chair of KidsOut in the Midlands said “2018 was another great year for the Giving Tree Appeal. Employees in businesses up and down the country showed enormous generosity by sacking Secret Santa and collecting in excess of 43,000 toys and over £15,000 in donations instead.

Businesses in the Midlands region have always been fantastic advocates for the Giving Tree Appeal.  In 2018 the region was again top of the leader board for the third year running as the most generous region in the country.  We are determined to maintain that top spot.”

Gordon Moulds, CEO of KidsOut comments, “Christmas is an especially difficult time for families and children in crisis. Our aim is to ensure that every child in refuge has at least some joy at Christmas. The Giving Tree appeal is central to us being able to deliver on this goal.

“Employers and employees across the Midlands have been a major driving force behind the Giving Tree since the beginning. We hope that we will once again enjoy their support in 2019 – and help transform even more Christmases for refuged and underprivileged children who otherwise will get nothing. ”.  

It’s so simple to help. Sign up on the website for enough tags for you, your team or even your whole firm. Hang them on your office Xmas tree (or notice board) and people can take them and buy the toys. There are lots of local drop off points and Kids Out do the rest. Easy – yet life changing. What’s not to like?

To sign up go to: – http://www.kidsout.org.uk/how-companies-can-help/giving-tree/

You can also contact the KidsOut Fundraising team on 01525 243215 to arrange for a delivery of tags, or to make a donation directly on the website.

Wilkes Solicitors | Brexit - Implications For Businesses & EU Workers

Pam Sidhu, Employment and Business Immigration lawyer at Wilkes, considers the key issues arising in a Brexit deal or no-deal scenario.

While uncertainty still shrouds the UK regarding the timing and precise terms of its departure from Europe, in relation to EU immigration matters, there is some certainty in that the government has agreed with EU partners what it intends to implement in the event of a Brexit deal scenario. In addition, it has recently set out its policy on what it intends to enact in the event of a no-deal Brexit.

Pam Sidhu comments:The issue at the heart of it all is that the EU right of free movement for European citizens, as we currently know it, will end on Brexit day (whichever date this will be). The main principles as to how this will occur have already been agreed with the EU, but in some respects are yet to be specifically transposed into UK immigration law and guidance.”

A deal scenario

The key principles agreed between the UK and EU are as follows: –

  • The right to EU free movement, as we currently know it, will end on Brexit day.
  • However, an implementation period will start from the date of Brexit to 31 December 2020, during which free movement of EU citizens and their family members will effectively continue.  This means that EU citizens already in the UK by Brexit day, as well as any new EU citizens who enter the UK for the first time after Brexit day, will be able to continue living and working in the UK in accordance with EU law until 31 December 2020.
  • EU citizens who have resided in the UK lawfully for five years by 31 December 2020 will be able to apply for “settled status” to stay indefinitely in the UK, under the EU Settlement Scheme. Such EU citizens will be able to continue to live and work in the UK and access public funds and services beyond the implementation period, and may go on to apply for British citizenship in due course.
  • Those EU citizens with less than five years residence in the UK by 31 December 2020 will be able to apply for “pre-settled status” under the EU Settlement Scheme.  These EU citizens will be granted a 5 year residence permit and could then continue living and working in the UK beyond 31 December 2020, until they acquire the requisite five year period for indefinite or settled status.
  • The deadline for submitting applications by EU citizens for settled or pre-settled status under the EU Settlement Scheme is 30 June 2021 (which means such EU citizens can continue to live and work lawfully in the UK as normal until this date).Any failure by an EU citizen to meet this deadline will mean they are here illegally and will be subject to removal from the UK. 
  • British nationals residing in the EU will have similar reciprocal rights in the period up to 30 December 2020.

A no-deal scenario

In the event of a no-deal, the government’s intention, as announced in a public Home Office statement on 5 September 2019, is as follows: –

  • EU free movement will end on Brexit day.
  • EU citizens already in the UK before Brexit will be able to apply under the EU Settlement Scheme for pre-settled or settled status, but the deadline for applications will be 31 December 2020 (not 30 June 2021, as applies if there was a deal scenario).
  • EU citizens who move to the UK for the first time after Brexit will be able to live and work in the usual way (as they do now) until 31 December 2020. If they wish to stay beyond 2020 they will need to apply for an immigration permission. One option for them is to apply for a new, voluntary 36 month temporary permission, called European Temporary Leave to Remain (Euro TLR) upon arrival into the UK. The application process is likely to be similar to that under the EU Settlement Scheme.
  • Alternatively, any EU citizens moving to the UK after Brexit will need to apply for an immigration status, as do other non-EU citizens. The government has indicated it will introduce a new skills-based immigration system which will come into being from 1 January 2021.

New UK immigration system – 1 January 2021

It is difficult to precisely understand at present what the new immigration system in 2021 (when free movement will completely end) will be, as the Migration Advisory Committee has been commissioned to report on these issues and is currently consulting over a number of months. The Committee is due to present its findings to Government in January 2020. The government is likely to publish further proposals, probably in a white paper, during 2020. Current indications from the government are that all workers regardless of nationality will need to meet the same immigration requirements under a points based system, not too dissimilar to the system currently used for the influx of skilled non-EU nationals into the UK.


Pam comments:The government has agreed a number of key principles as regards how EU free movement will end in the UK and these matters are expected to be the subject of new legislation and immigration rules in due course. Most immediately, businesses reliant on EU employees should ensure they understand the implications of the end of free movement rights under a Brexit and what measures can be put in place towards safeguarding EU nationals’ residence status and planning their workforce requirements for the future.”

If not done so already, EU citizens should take steps to preserve their residence status under the EU Settlement Scheme. Employers can direct staff to the EU Settlement Scheme, which is available online.

“In addition, the government has announced that there will be a new, level playing field for all foreign citizens (both EU and non-EU nationals) who apply to live in the UK from 2021, with the implementation of a new immigration system. This is a significant sea change for UK businesses who have to-date relied on easy access to EU labour. Businesses should consider how they intend to recruit European workers after 2020. The indications at present are the UK’s new skills-based system will depend upon sponsorship, although in a more liberal regime. Accordingly, it will be important for employers to obtain or maintain their current sponsor licences. Employers will also need to ensure they are carrying out appropriate right to work checks on workers in light of the changes. ”

We offer a range of advice for international clients regarding business immigration matters as well as a comprehensive suite of Employment services for both businesses and individuals.

If you have any query relating to this topic, please contact Pam Sidhu on psidhu@wilkes.co.uk or 0121 233 4333.

We are looking to hold a series of workshops to discuss these issues in more detail. To register your interest in attending a workshop please send me an email and indicate any questions you are interested in having answered.

Areas to Consider Regarding Succession Planning & Tax Reliefs for Farmers

Adrian Schuck, Associate Solicitor in our Birmingham Private Client Team discusses the importance of proper estate planning for farmers and individuals involved more broadly in agricultural related business.

A will is your Legacy and an essential part of your plan to ensure that your Estate is distributed in the manner you intend. This is perhaps of particular importance to a farmer, whose assets may include the farm and business to which they have devoted their life’s work.

All farmers and businesses are different but we often hear “I want to ensure that the my farm and business are passed on to those I want to inherit them, without them having to be sold” and “how can I do this and also reduce the amount of inheritance tax?”

It is here that an appropriately drafted will tailored to the Farmer’s circumstances is essential.

To allow the Farmer some control over who benefits under their Will, a discretionary Trust may be suitable, allowing the Farmer to appoint trustees who are responsible for what is distributed to which Beneficiaries, on what terms and when. This may be of particular appeal to a farmer who has concerns that certain assets may be at risk of potential divorce, bankruptcy or mismanagement.

A suitably worded letter would accompany the Will providing guidance as to how they envisage the Farm and Business should be run which the Trustees can take into account upon the Farmer’s death.

If the Farmer’s estate exceeds their inheritance tax thresholds, consideration should also be given to the availability of agricultural property relief (APR) and business property relief (BPR) so that the Farm and Business may be left free of tax under the terms of their Will.

It is therefore imperative that consideration is given to the structure of the Farmer’s Business and their ownership or occupation of the Farm at the time of making their Will in order that appropriate lifetime planning can be undertaken.

If you are a farmer, a business owner or you own agricultural property and would like to discuss any of the points raised in this article, please contact Adrian Schuck on 0121 710 5900 or aschuck@wilkes.co.uk

The Wilkes Partnership named Legal Firm of the Year at City of Birmingham Business Awards

More than 300 of Birmingham’s leading business people attended the City of Birmingham Business Awards on Friday 17th October where The Wilkes Partnership were named Legal Firm of the Year.

The award, which was voted for by the public, recognises the expertise in all areas of The Wilkes Partnership’s team and the high quality of work completed by all in the firm.

Ellie Holland, Joint Managing Partner at The Wilkes Partnership, says: “This award is not just about the growing reputation of Wilkes, but more about the quality of work that our talented staff produce for our clients every single day. The fact that this was voted for by the public means so much to us.”

Currently in its third year, the City of Birmingham Business Awards was hosted by Ed James at the Edgbaston Cricket Ground and 20 awards were given out during the night ranging from Employee of the Year to the Chief Executive’s Award.

We’re really pleased that Wilkes has won this award. The way that everyone has worked together since the merger to make the firm even better, expand on their knowledge and bring fantastic work to clients has been seamless. This is a great way to enter the final stages of the year and we’re looking forward to more success next year as well.” Added fellow Joint Managing Partner Gareth O’Hara.

The Wilkes Corporate team, led by Jeremy Parkin, have advised long-standing client Blue Sky Corporate Finance on its recent merger with Solihull based accountancy firm Jerroms.

The merger enables Jerroms to offer a full suite of corporate finance services to their thousands of clients across the UK.

This latest move marks significant growth plans for the firm as it looks to expand its offering and build on its excellent reputation as a leading accountancy and businesses advisory firm in the region.

Jerroms’ corporate finance division is to be rebranded and will operate from its headquarters in Blythe Valley Park, with the Blue Sky accountancy services relocating to the Jerroms’ office in Bromsgrove.

Alongside Jerroms’ directors Lucas Markou and Mark Eden, Jerroms Corporate Finance will be headed up by Paul Heaven, the former managing director of Blue Sky.

Commenting on his experience with Wilkes, Paul Heaven, Director at Blue Sky said: “Wilkes have a close relationship with both firms and helped to facilitate the transaction by introducing Blue Sky to Jerroms. Jeremy Parkin led the Wilkes team, assisted by Helen Smart and Mike Linford. They provided their usual efficient and highly commercial advice and I look forward to continuing to do deals with them under the Jerroms Corporate Finance banner.”

Jeremy Parkin, Partner in the Corporate team at Wilkes said: “I am delighted that these two highly respected firms have joined forces. The addition of Blue Sky’s Bromsgrove-based accountancy practice gives critical mass to Jerroms’ presence there and the corporate finance arm will offer all their clients a wealth of deal-making experience and funding options.” 

This is the latest in a growing line of M&A work for The Wilkes Partnership, following the completion of deals across a range of sectors including IT software, FMCG, events and health and social care.

For help and advice relating to your business get in touch with Jeremy Parkin on 0121 710 5931 or via email at jparkin@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.