Understand Your Rights. Solve Your Legal Problems
A leading Scottish law expert is urging people to check their wills as the law of succession sees its most significant overhaul in 50 years this November.
According to Murray Etherington of Thorntons, some commentators view the reforms as a ‘tidying up exercise’ – but he has cautioned this is not the case and the changes are “fundamental.”
As the terms of the Succession (Scotland) Act come fully into force, it marks the first stage in a series of major changes, with a separate Succession Act expected to be presented to the Scottish Parliament next year.
Murray, head of Thorntons’ Private Client Department, said: “This is much more than a tidying up exercise that deals with some technical points. It will have a significant impact and it is essential that people are aware of the implications, and that they review their Wills accordingly.”
He said the legislation affects four key areas – Wills after divorce, dissolution and annulment; sorting out mistakes; revoking old Wills; and situations where family members die together.
Previously, if you made a Will in favour of a spouse / civil partner or appointed them as executor, and the relationship later ended, the terms of the Will still applied – meaning an ‘ex’ could inherit, or be in charge of distributing, your assets.
Under the new rules, any appointment of your ex as executor, or bequest to them made before divorce/dissolution/annulment will automatically have no effect unless you state otherwise.
Murray explains the implications: “Some may not want an ex to inherit or distribute assets but may not have got round to re-writing their will, in these circumstances, it’s a welcome change. However if your split is amicable or you want your former partner to look after your children after you die, your current Will may longer allow that to happen so it’s important to be aware.”
Rules for revoking old Wills have also changed. There are often instances where people write a Will, then later write a ‘new Will’ cancelling the old one – but if the new Will was cancelled the old one would automatically come back into force unless it had been destroyed.
Now, old Wills which are revoked cannot be revived.
Murray continued: “When old Wills came back into force it was most likely not what was intended and could lead to unfortunate and unexpected consequences so this change is also welcomed. But it also serves as a reminder of just how important it is to have a valid Will because, without this, your estate will fall into ‘intestacy’ and the ways your assets are distributed depends on the terms of a law from 1964!
“That law can cause upsetting results such as leaving your spouse with little, and leaving young children with huge sums they receive at 16. The legal process involved is also costly and time consuming.”
Other changes to take effect include rules around situations where groups of people (often close relatives) die together. Establishing the order of people’s deaths could significantly affect distribution of assets – however the rules have now been simplified so that (except in limited circumstances) the law will deem that they died simultaneously and no-one survives the other.
Furthermore the law will now allow terms of a Will to be corrected, in limited circumstances, where there is a mistake – such a as a key beneficiary’s name being wrongly stated. This change is a useful provision for the correction of errors, but will not let unhappy individuals challenge its terms.
Murray concludes: “These are the most significant changes to succession legislation in half a decade and for the most part will be welcomed as positive change.
“But in light of the reforms, it is essential that anyone with a Will considers whether they still reflect your wishes and intentions.”
(Source: Thorntons Solicitors)
Germany’s small businesses are the most optimistic about their own economy according to the inaugural Global Business Monitor report from international business funder, Bibby Financial Services (BFS).
Nearly three-quarters (73%) of German SMEs say their national economy is performing well in the global study that surveyed business owners in the US, Germany, UK, Poland, Hong Kong and Ireland.
More than two thirds (67%) of Irish SMEs are confident about the local economy. German and Irish SMEs are also most confident about the future with 57% of SMEs in both markets expecting sales to grow in the year ahead.
Conversely, less than one in five businesses in Hong Kong (15%) say they are confident about their local economy, with less than a quarter (24%) expecting sales to increase in the next 12 months.
Steve Box, International CEO of Bibby Financial Services said: “Germany is often seen as the industrial beating heart of Europe. Our research underlines the confidence of the small businesses in Europe’s largest economy as the EU looks to agree its shape post-Brexit.
“It is a different picture for the economy in Hong Kong where the majority of business owners are pessimistic about future sales and the local and global economies.”
The study reveals the sentiment of global SMEs in areas such as investment, confidence, challenges and opportunities, overseas trade and payment terms. In relation to international trade, findings show that small businesses in Hong Kong are three times as likely (69%) to export as those in the UK (22%) and seven times as likely as in the US (10%).
Steve added: “Due to its geographical location, Hong Kong is an important gateway to trading activities between China, the US and Europe. Its economy is highly export driven and this may explain why confidence is subdued during a time of economic change and significant currency fluctuation.”
Across the study, almost a quarter of businesses (24%) said that foreign exchange fluctuations are the biggest challenges they face in relation to international trade. For SMEs in Poland and Hong Kong, figures rose to 46% and 37% respectively.
Despite pockets of confidence in their local economies, the research reveals that nearly three-quarters (73%) of all SMEs have concerns about the global economy, with those in the US (83%) and Ireland (82%) the most concerned.
Steve concluded: “It’s clear that confidence in the global economy has suffered due to macro-economic and geo-political events in the last six months. The real question is for how long will confidence be affected?
“It is likely that the UK’s formal exit from the EU – commencing with the triggering of Article 50 by the end of March next year – will have further economic consequences that will be felt around the world.
“As the world shapes itself with a new US president and an EU without the UK, it is those small businesses that can adapt to changing domestic and international trading conditions that will be best placed to profit and grow in 2017.”
Other key findings of the Global Business Monitor report include:
Challenges
Investment
Payment terms
Manufacturing (39 days) and construction (40 days) businesses typically wait longest for payment when compared to other industry sectors.
(Source: Global Business Monitor)
The judicial decisions of the European Court of Human Rights (ECtHR) have been predicted to 79% accuracy using an artificial intelligence (AI) method developed by researchers in UCL, the University of Sheffield and the University of Pennsylvania.
The method is the first to predict the outcomes of a major international court by automatically analysing case text using a machine learning algorithm. The study behind it was published today in PeerJ Computer Science.
“We don’t see AI replacing judges or lawyers, but we think they’d find it useful for rapidly identifying patterns in cases that lead to certain outcomes. It could also be a valuable tool for highlighting which cases are most likely to be violations of the European Convention on Human Rights,” explained Dr Nikolaos Aletras, who led the study at UCL Computer Science.
In developing the method, the team found that judgements by the ECtHR are highly correlated to non-legal facts rather than directly legal arguments, suggesting that judges of the Court are, in the jargon of legal theory, ‘realists’ rather than ‘formalists’. This supports findings from previous studies of the decision-making processes of other high level courts, including the US Supreme Court.
“The study, which is the first of its kind, corroborates the findings of other empirical work on the determinants of reasoning performed by high level courts. It should be further pursued and refined, through the systematic examination of more data,” explained co-author Dr Dimitrios Tsarapatsanis, a Lecturer in Law at the University of Sheffield.
The team of computer and legal scientists from the UK, alongside Dr Daniel Preoţiuc-Pietro from the University of Pennsylvania, extracted case information published by the ECtHR in their publically accessible database.
“Ideally, we’d test and refine our algorithm using the applications made to the court rather than the published judgements, but without access to that data we rely on the court-published summaries of these submissions,” explained co-author, Dr Vasileios Lampos, UCL Computer Science.
They identified English language data sets for 584 cases relating to Articles 3, 6 and 8* of the Convention and applied an AI algorithm to find patterns in the text. To prevent bias and mislearning, they selected an equal number of violation and non-violation cases.
The most reliable factors for predicting the court’s decision were found to be the language used as well as the topics and circumstances mentioned in the case text. The ‘circumstances’ section of the text includes information about the factual background to the case. By combining the information extracted from the abstract ‘topics’ that the cases cover and ‘circumstances’ across data for all three articles, an accuracy of 79% was achieved.
“Previous studies have predicted outcomes based on the nature of the crime, or the policy position of each judge, so this is the first time judgements have been predicted using analysis of text prepared by the court. We expect this sort of tool would improve efficiencies of high level, in demand courts, but to become a reality, we need to test it against more articles and the case data submitted to the court,” added Dr Lampos.
(Source: University College London)
What happens to employees when a company goes bankrupt?
Recently, Fox News reported the dilemma faced by both business and employees when a large enterprise runs out of cash. While employees are usually worried about covering the bills, maintaining health insurance coverage and filing for unemployment, crew members onboard ships owned by Hanjin Shipping face much larger problems. Dozens of Hanjin ships holding billions of dollars in goods are anchored at sea, unable to come to port for fear of seizure.
Hanjin Shipping, the world’s seventh largest shipping business, has been faltering for months; now that they have actually gone for bankrupt, the South Korean business has 40 ships left stranded at sea. Those boats aren’t empty; current estimates reflect about $14 billion in inventory and a full host of employees as well. The ships are slowly going through their available food, water and supplies as the company struggles to find ports that will accept them – without seizing their assets.
Hanjin Shipping’s bankruptcy has left both employees and cargo adrift; the massive carrier ships are anchored offshore and slowly running out of food and water for the castaway employees. With no way to dock, those workers are stuck onboard the ship with no way to get home; the company has not revealed a plan to pay these employees or a plan for getting the workers back to their home ports. In addition to the employee crisis, each ship’s cargo holds are also bursting with consumer goods, from Nike sneakers to Samsung electronics, which may not make it to retailers in time for the busy holiday shopping season.
Why Can’t the Hanjin Ships Dock?
Hanjin is deeply in debt, to the point that they can’t actually bring the ships into ports; the company has not paid the workers who would normally unload the cargo or the rail and land shipping businesses that would deliver the goods to their destinations. The company fears that bringing these ships to port without paying the bills would result in the seizure of that cargo.
Those fears are well founded. At least one ship has already been seized for unpaid fuel debts, off of the coast of Long Beach California; this seizure came after a Federal bankruptcy judge ruled that the Hanjin ships could be seized by United States creditors.
According to National Retail Federation Vice President for Supply Chain and Customs Policy, Jonathan Gold, “Merchandise is in limbo at the moment and retailers are working hard to make sure it ends up on store shelves in time for the holidays.”
So far, Hanjin has enough capital to have four ships dock and unload in the United States, while almost a dozen other Hanjin ships are still at sea.
What about the Workers?
According to the International Transport Workers Federation (ITF), the remaining ships currently have enough fuel, food and water for the employees onboard, but Hanjin is already asking crews to conserve resources. The company is also making efforts to deliver supplies for those ships that are running out, according to a company representative.
Bankruptcy laws in some countries do allow governments to seize the ships and the merchandise they carry. As Hanjin Shipping goes through the process, the employees onboard its cargo ships are faced with more than the typical amount of uncertainty; they do not know when they will be able to come to port, disembark and return home or whether supplies will continue to arrive as promised.
The Hanjin Shipping bankruptcy raises significant questions about an employer’s responsibilities to employees when they are deployed to remote areas or performing at risk tasks far from home; who is responsible for safety and for getting those workers back home? The strange case of Hanjin Shipping is the first of its kind -- but may not be the last for the overcrowded and burdened shipping industry.
About the Author
Emory Clark is the lead attorney at Clark & Washington, LLC. Their Atlanta bankruptcy attorneys offer sound financial and legal advice in bankruptcy cases. Clark & Washington’s exclusive work on Chapter 7 and 13 bankruptcy cases allow them to advise and counsel their clients through each step of the process. Visit http://www.cw13.com/ to learn more.
(Source: Clark & Washington, LLC)
Companies who allow their customers to breastfeed in public should extend the same rights to their employees, says Tayside solicitors firm Miller Hendry.
The warning follows the high-profile case of airline company easyJet, which failed to accommodate requests from cabin crew to vary their duties in such a way as to enable them to express breastmilk so that they could continue breastfeeding after their return to work after maternity leave. Easyjet offered two members of its cabin crew six months of ground duties while they were breastfeeding. easyJet's argument was that continuing to breastfeed longer than six months was the employees' own choice. easyJet also failed to respond to a request to limit the length of shifts the mothers were to work from 12 hours to 8 hours.
Although easyJet recognised breastfeeding as being a right of passengers, the airline's position did not extend to crew, according to the complainants - both members of the trade union Unite.
An employment tribunal ruling found that easyJet's suggested solution amounted to discrimination. Unite's legal officer, Nicky Marcus, said the ruling had "wider implications for all working women".
Alan Matthew, employment specialist with Miller Hendry, said: "It's usually breastfeeding customers who make the headlines, with retailers and other service providers touting their openness to women breastfeeding, or being called out for not allowing it. But this case shows that employees are just as important when it comes to the rights of working mothers. This ruling is a lesson for all employers and how they treat their female employees."
(Source: Miller Hendry)
This afternoon, Uber drivers won the right to be classed as workers rather than self-employed.
The ruling by a London employment tribunal means drivers for the ride-hailing app will be entitled to holiday pay, paid rest breaks and the National Minimum Wage.
Steven Eckett, employment solicitor at Gardner Leader solicitors:
The Employment Tribunal's decision to class these particular Uber drivers as 'workers' rather than 'self-employed' will have repercussions throughout the gig industry and is highly likely to lead to a rethinking of the employment status of these workers and with it, a clarification of their employment rights. It is also likely to impact on Uber drivers in the EU who are also bound by the Working Time Regulations.
Decision sheds clarity on definition of worker
The gig economy has thrived on companies using a pool of self-employed or freelance workers rather than directly employing them but this has, at times, led to a misunderstanding amongst various businesses over who is classed as self-employed and who is classed as a worker. The difference has a significant impact because workers in law have a range of employment rights that they are able to enforce.
People are classed as workers when there is a mutuality of obligation on the part of the business to provide work that these workers are obliged to undertake, with a degree of control by the business as to where, when and how the work is to be carried out. This contrasts with genuinely self-employed contractors who are usually free to accept or decline work.
Greater cost to the 'gig' industry and consumers
The employment tribunal's decision today certainly sheds clarity on the employment status of this new breed of ‘freelancer’ currently fuelling the growth of the UK gig economy. However, consequences of the judgment is likely to result in increased costs to the gig industry in order to comply with the new employment laws, and it's probable that these will be passed on to the consumer, such as through higher fees, delivery rates and prices for goods and services. The service industry like couriers, fast food delivery companies and portable cleaning operators are likely to be hit the hardest.
Workers, not to be confused with employees who have greater employment rights in law, are also entitled to minimum legal rights. These include for example, the right to claim unfair dismissal, to receive statutory sick pay maternity, paternity and parental rights; to be paid the national living or minimum wage depending if they are aged 25 or more; to have working time rights such as not to be forced to work more than 48 hours per week, regular rest breaks and night working health and safety standards; to receive a statement of terms and conditions of employment.
Further, Uber will need to have a qualifying auto-enrolment pension scheme in place and backdate any pension contributions.
There is also the issue of immigration. If those you hire are classed as workers then the burden to vet them will be on the business to ensure that all those individuals have the right to live and work in the UK. Failure to do so can lead to fines and ultimately criminal sanctions against the business and also the individual, not to mention the risk of bad publicity should the business fail to compile to any minimum legal employment rights.
Take action
Businesses concerned as to how this ruling may affect them should seek timely legal advice on their recruitment policies and procedures to ensure compliance with the law. It is also imperative that they issue written terms and conditions to these workers clarifying pay rates, hours of work, role and responsibilities, sickness provisions, holiday entitlement and health and safety and equal opportunity policies. It is also no good having a succession of fixed term contracts either to get around the law as after the fourth renewal of a fixed term contract it will be deemed to be permanent.
Kathryn Dooks, Employment Partner at Kemp Little LLP, said:
Two Uber drivers today won their employment tribunal claim against the “gig economy” app. The decision means they are classified as “workers”, entitling them to the National Living Wage (£7.20 / hour for drivers over the age of 21), paid holiday, sick pay and rest breaks, amongst other rights.
The claim revolved around the level of control exerted over the drivers by Uber. Uber claimed that the drivers were self-employed, choosing when and where they worked. It argued that many of the drivers wanted to be self-employed, so they could be their own boss and work completely flexibly. However, drivers can be suspended for not accepting enough rides or for low passenger ratings following a drive, leading to arguments about the nature of the relationship.
Uber faced similar claims across the USA and lost a case in California in 2015, leading the company to try to settle numerous other claims across the US earlier in the year. By contrast, the Florida Department of Economic opportunity previously ruled US Uber drivers were independent contractors, meaning the drivers were not eligible for unemployment insurance.
The outcome of the English employment tribunal case could have a significant impact on the business models of companies like Uber, Deliveroo and other apps which match service providers to customers. For this reason, the decision is certain to be appealed by Uber. In the meantime, Uber can expect a large number of claims from its drivers following this test case and other apps can expect similar claims. The courier firm City Sprint is already facing a hearing on the same point in November. No doubt many such businesses will be reviewing their working practices to see whether they can avoid the implications of the decision. But these attempts may be futile in the longer term as the government has announced an independent review of the law in this area, to be conducted by Tony Blair’s former policy chief, Matthew Taylor, which seems to signal a more interventionist approach.
Jamie Lester, Partner at Lincoln's Inn law firm Hunters incorporating May, May & Merrimans:
This is a decision which will no doubt be the subject of appeal and potential further appeal, given the huge ramifications to Uber’s current business model which might now be unsustainable.
(Sources: Gardner Leader, Kemp Little, Hunters)
Parties judged to have unreasonably dismissed mediation as an option for out of court settlement risk being hit with indemnity costs, Matthew Smith, costs barrister at Kings Chambers, has warned.
The warning comes after Mirror Group Newspapers was last week forced to pay indemnity costs to claimants when Senior Costs Judge, Master Gordon-Saker, ruled it had unreasonably failed to discuss the possibility of mediation.
Mediation, often known as Alternative Dispute Resolution, is a process where a third party mediator, typically a barrister, helps parties settle disputes out of court.
The process has experienced growing support over recent months, with many judges now actively encouraging its use.
The case of Various Claimants vs Mirror Group Newspapers is the latest high-profile case where indemnity costs have been awarded on this basis.
Speaking about the risks of refusing to discuss the possibility of mediation, Mr Smith said: “In his judgement Master Gordon-Saker has reiterated the importance of Alternative Dispute Resolution and the possible consequences for litigants who fail appropriately to try to resolve their disputes outside the courtroom.
“The claimants were entitled to their costs. They successfully argued that those costs should be allowed on the indemnity basis because the defendant, Mirror Group Newspapers, had failed to respond to a suggestion of mediation.”
Indemnity costs were awarded despite the defendant having offered, and the claimant having accepted, over £2 million in settlement of the base costs in the common costs bill and costs on the standard basis for that part of the assessment.
In his judgement, Master Gordon-Saker said: “I have no hesitation in concluding that the defendant has behaved unreasonably in failing to engage in the process of discussing at least the possibility of alternative dispute resolution, and mediation in particular, and given that the common costs base costs have been agreed, it seems to me that there was no reason for pessimism as to the outcome of any mediation.
“It seems to me, therefore, that the defendant’s conduct is unreasonable to a high degree and is such as to justify an award of costs on the indemnity basis.”
The ruling provides another very strong signal that judges are willing to penalise parties judged to have unreasonably declined to discuss the prospect of mediation and may lead to an increase in the number of cases settled out of court through the process.
Mr Smith added: “Mediation is a process which has been looked upon increasingly favourably by judges, a development that has led to an increase in the demand for specialists in this area.
“This ruling is proof that judges will take action where they believe that it has been unreasonably dismissed as an option, and is likely to make parties think twice before dismissing mediation out of hand.
“They know that if they do, they may find themselves landed with substantial costs, so we can expect the option of mediation to be considered very seriously in light of this ruling.”
(Source: Kings Chambers)
Hazel Wright, certified family mediator and Partner at leading Lincoln’s Inn law firm Hunters incorporating May, May & Merrimans.
(Source: Hunters)
Autumn usually heralds a flurry of new employment legislation and 2016 is proving to be no different. The most immediate change that employers had to get to grips with was the increase in the National Minimum Wage (NMW) rates that was introduced on 1st October. The government has accepted the Low Pay Commission’s recommendation that the NMW should be increased, but in a change from past increases, the new rates will only remain in force for six months instead of the usual twelve. The reason for this change to the calendar is to bring the NMW increases in line with the proposed increase in the National Living Wage (NLW). As employers will recall, NLW came into force in April 2016 amidst much controversy. NLW only affects employees over the age of 25. The increase in NMW will not affect employees earning NLW.
With the introduction of the NLW, the NMW increase (whilst expected by employers) represents another forced pay rise that employers will have to fund during 2016. With the effect of NLW now starting to bite, many small businesses are reporting that they are being placed in a state of ‘financial distress’ because of the increase in overheads caused by growing staff costs. This situation is only likely to get worse given stated aim of the former Chancellor, George Osborne, for the government to increase NLW to £9 by 2020.
In addition, following the outcome of the referendum on the UK’s membership of the EU, whilst no-one can say with any certainty what ‘Brexit’ will look like, it remains to be seen whether smaller employers can absorb these increased wage costs in the long term.
The risk to employers who do not pay NMW is of course greater since April 2016 when the penalties for paying below NMW increased from 100% to 200% of the money owed to the employee. Furthermore, in an effort to promote compliance the government is also now publishing lists of those employers who have been found to be paying below NMW.
There was however some respite for employers with the announcement of a delay in the implementation of the draft Equality Act 2010 (Gender Pay Gap Information) Regulations 2016. These regulations have received much publicity in recent months as the government seeks to redress the imbalance in gender equality by making it mandatory for companies to publish details of the difference between their male and female employees’ pay. A report by the Equality and Human Rights Commission estimates that in the UK there is a gender pay gap of 20%, with women earning on average 80p for every £1.00 earned by a man. The hope is that by fostering more transparency, the new regulations will incentivise employers to take proactive steps to promote fairness between the genders and identify inequality.
Not to be confused with equal pay or discrimination, the gender pay gap looks at the differences in average pay between the genders in an organisation over a period of time, irrespective of whether they do ‘like work’. The regulations will require employers to provide information not just about salary gaps but about bonus gaps as well.
The regulations requiring employers to publish their gender pay information are now expected to come into force in early 2017 for private and voluntary sector employers with over 250 employees. Employers will be required to look at the mean and median figures for pay in their organisations, which includes bonuses etc. Employers who are subject to these regulations will then be required to publish details of their gender pay gap by uploading that information to the government’s website.
Although not a mandatory requirement, there will be an option for employers to supply a written narrative to explain the information they disclose. It is anticipated that many employers will take advantage of this facility to place their information in context. Not all employers are the same, and there is a fear that simply publishing raw data without providing a commentary (particularly in respect of an adverse report) could lead to significant reputational damage. There may be a legitimate reason why there is disparity between male and female wages, so it is only appropriate that the employer at least has an opportunity to put forward an explanation.
The first reports are not due to be published until 2018 and will be required every year thereafter. Given the increased administrative burden that will be placed on those who are required to comply with these new reporting obligations, employers are advised to start looking at the processes they need to put in place now to ensure that the correct data is collated. As the information due to be published in 2018 relates to pay differences in the preceding year, information will need to be gathered from April 2017, and in some cases even earlier. It is important that employers have the necessary tools to cope with this requirement.
Preparing the gender pay gap information at the last minute may comply with the reporting obligations, but it will not achieve the purpose of the regulations – namely to identify any pay gaps and incentivise the employer to do something about it. Employers who are required to report in 2018 should already be applying the principles of the regulations to their organisations to identify any significant pay gap. This will give them time to address any inequality before they are required formally to upload their information to the government’s website.
At present there is no specific sanction contained within the regulations for employers who fail to publish their information. There has been some debate as to whether the regulations can work if there is no viable sanction for non-compliance. However, one view is that a simple fine would not work because larger employers may take the view that it is cheaper to pay the fine rather than increase remuneration. This is not what the government wants to achieve.
There is however a financial incentive for compliance that employers should consider, namely the potential for Employment Tribunal claims if the information gathered points to a substantial gender pay gap between the sexes. The first reports from larger organisations will undoubtedly be reviewed with interest by employees, and those who feel that they are being underpaid as a result of the gender pay gap may decide to seek redress via legal action.
It is also highly likely that employers who have a large gender pay gap will be at risk of public “naming and shaming” which could have a significant impact on business. As with much new legislation, action groups will probably be looking to make an example of those household names which disclose a significant gender pay gap and have taken no steps to redress the imbalance. It is not beyond the realms of possibility that we will see famous brands being boycotted because their gender pay gap reports reveal that they do not have an inclusive culture.
Paul Kelly, Employment Solicitor at Blacks Solicitors
(Source: Blacks Solicitors LLP)
This month, we are giving three lucky readers the chance to win a Keurig OfficePRO® for their workplace, along with a selection of delicious K Cup® pods. With Keurig K Cup® pods you and your clients will enjoy a wide selection of freshly ground coffees, fine teas, and indulgent hot chocolate from brands like Starbucks, Twinings, and Café Escapes®.
For a chance to win, simply share this video on social media, using the #FuellingLaw and tagging @KeurigUK and @LawyerMonthly in your post. Winners will be announced in October.
Connect with Keurig:
