Author: Pearson Rowe

Contrary to popular belief, settlement agreements are not a one-way street in favour of employers.

In fact, employees who are unhappy in their job are perfectly within their rights to approach employers on a ‘without prejudice’ basis to determine whether they would be open to the idea of negotiating the conditions of the termination of their employment.

After all, a settlement agreement is effectively a legally binding contract which bypasses the need to take an employment dispute to a court or tribunal – and many employees will wish to resolve their disputes as quickly, easily and efficiently as their respective employers.

Not to mention the fact that settlement agreements can be equally beneficial to both parties – whether it be on the grounds of obtaining an agreed job reference under difficult circumstances, agreeing a payment out of court, or just avoiding long-winded proceedings.

Why risk being faced with unfair dismissal and messy tribunals?

The Law Society has recently warned about the risk to cohabitees if either partner dies without having made a will.

In these circumstances, the deceased’s assets are likely to go to their children, estranged wives or husbands or, in the absence of close relatives, the government. Their surviving partner, meanwhile, may be left with nothing.

The risks involved were thrown into sharp relief by the well-publicised case of a bereaved woman, whose long-term partner had not updated his will.

When Norman Martin died suddenly of a heart attack, his share of the couple’s three-bedroom home passed to his estranged wife.

His partner, Joy Williams, subsequently took the case to court and although the Judge ruled in her favour, she had to endure around four years of uncertainty.

The Law Society has pointed out that an up-to-date will would have meant that Ms Williams would have been spared a considerable amount of stress.

President Jonathan Smithers said: “This case is an important reminder for unmarried couples to make sure they have a valid and up-to-date will, and to seek expert legal advice regarding any co-owned property, if they intend their current partner to inherit upon their death.

“Making a will is extremely important. Solicitors have the necessary qualifications and training to address the often complex issues associated with drafting a will and can help ensure that your estate is left to those who you wish to inherit after your death.”

Recent press reports have claimed the take-up of shared parental leave by new parents could be as low as one per cent.

But it turns out this is not the whole story. The figure given in the press was based on only part of a research exercise conducted by My Family Care and the Women’s Business Council.

The two organisations surveyed more than 1,000 individuals and 200 HR directors. The one per cent figure which has gained traction in the press relates only to the responses from the 200 HR directors surveyed. These responses referred only to men, who were not necessarily new parents.

The one per cent figure did not take into account to the responses from the 1,000 individuals who were also surveyed. This paints a drastically different picture. 10 per cent of the employees surveyed were new parents or had adopted a child in the past 12 months. From this group, 24 per cent of women and 30 per cent of men said they had taken shared parental leave.

The findings of this survey are backed up by the findings of a similar survey of 628 people by Totaljobs. This found that 86 respondents were new parents of whom 31 per cent said they are using or had used their right to shared parental leave while 48 per cent did not use their right and 21 per cent said they were ineligible.

While the sample size is small and it may be too early to get an accurate picture of the uptake of shared parental leave, it is clear the real figure is much higher than many press reports have suggested.

As the UK begins the process of leaving the EU – regardless how they voted – many will be wondering what the future holds.

The future for the post-Brexit UK will very much depend on how the negotiations around the UK’s exit from the EU proceed in the coming months and years.

A post-Brexit UK retaining strong ties with the EU, perhaps resembling Norway, would look very different from a post-Brexit UK with weaker ties to the EU.

Most likely for businesses, however, the devil will be in the detail; which elements of EU law will no longer apply? How will businesses be able to change their procedures to take advantage of any reduction in red tape? How will EU laws the UK wishes to retain be enacted into domestic legislation? How will cross-border disputes be dealt with? Will the UK retain any relationship with the European Court of Justice as a consequence of any free-trade agreement? What legal requirements will there be around trade with EU member states?

While the answers to these and the many other questions around Brexit are being determined, we will be working pro-actively on behalf of clients to help plan for any changes in legislation or legal requirements to minimise any disruption to your business.

If you have any questions around how the negotiations will affect you and your business, please contact us.

Privacy and injunction cases brought before the courts in England and Wales have doubled over the last five years.

The rate at which privacy cases are coming before judges has accelerated to one per week. A fifth of these cases involve celebrities or politicians.

The editor of European Human Rights Law Review, Jonathan Cooper, said: “The debate over the use of privacy injunctions has reignited after a number of years in which their usage had tailed off.

“The media has expressed concerns that it is too easy for public figures to use this tool to control what was being published about their private lives.”

Research by Thompson Reuters Legal Business showed a sharp increase in the number of privacy cases from 28 in 2009-10 to 58 in 2014-15.

A spokesman for the firm said: “The number of reported court cases involving privacy arguments has reached a new high.

“Approximately a fifth of reported cases using privacy arguments in the last year involved celebrities and politicians.”

“Another key issue in many privacy cases is the extent to which individuals have a right to determine what happens to information after they have provided it to a company or a public sector body.”

Link: Court cases involving privacy ‘double in five years’

Acas has published a new independent study that shows how its revitalised conciliation service has managed to reduce the number of employment tribunal hearings conducted in the UK.

The figures are partly a result of changes to the law in 2014, which meant that anyone considering launching an Employment Tribunal claim has to notify Acas first.

It is then Acas’ responsibility to attempt to resolve the dispute, without the need for legal action to be taken, through the use of its own free conciliation service. This option remains open even after a tribunal claim has been lodged.

The independent research showed that approximately seven out of ten (71 per cent) claimants avoided going to court after receiving assistance from Acas and in eight out of ten cases that under-go conciliation users feel satisfied with the process.

Importantly for the future of the service, 92 per cent of employers said they would use the service again, while 87 per cent of claimants would also re-use the same conciliation system.

Acas Chair Sir Brendan Barber said: “Our advice is that it is always better to try and resolve a workplace dispute at the earliest possible stage. But anybody who finds themselves in a position where they are considering legal action should definitely consider our free conciliation service first.

“New independent research shows that seven out of ten potential employment tribunals have been resolved or avoided thanks to our help.

“These encouraging findings, alongside the high levels of satisfaction from both employers and individuals who have used our service, are a testament to the professionalism and expertise of our conciliation staff.”

Link: Acas research

A formal declaration has been made by Sir James Munby, President of the High Court Family Division, which state that UK law discriminates against single parents with children born through surrogacy and is incompatible with their human rights.

His declaration comes in light of Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam), which concerns a British biological father of a 21-month-old boy known as ‘Z’, who was born through a US surrogacy arrangement and lives with his single father in the UK.

In September 2015 the high court ruled that it was not possible to grant a UK parental order to the father of Z – an order required to extinguish the responsibilities of the surrogate and to issue a UK birth certificate for Z – as under UK surrogacy law only couples could apply; not single parents.

Subsequently the court found that the US surrogate who carried Z and who continues to live in the USA has sole decision making rights in the UK despite not being his biological mother and having no legal status there. Following this decision Z was made a ward of the court.

However upon review of the case Lord Munby has now declared that the law is incompatible with the father’s and the child’s human rights, and discriminates against them.

In a rare move that the Secretary of State for Health decided not to oppose the father’s application, conceding that UK law breached human rights legislation and consenting to the court making a declaration of incompatibility.

Declarations of incompatibility under the Human Rights Act are rare only 20 final declarations have ever been made, of which all but one has prompted the law being changed. The government has not yet confirmed whether it plans to push forward reform in this area.

Responding to the judgment, Z’s father said: “I am delighted by today’s ruling which finally confirms that the law is discriminatory against both my family and others in the same situation. I persevered with the legal action because I strongly felt that my son should be in the same legal position as others born through surrogacy.

“I have a son whom I love dearly and as part of this process there was a rigorous court assessment that confirms that I am a good parent. I am now eagerly waiting to hear what the government will do so my son does not need to indefinitely remain a ward of court.”

Link: Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam)

During the latest Autumn Statement the Chancellor George Osborne announced new proposals that will see remove the right to general damages for minor soft tissue injuries and increase the small claims limit from £1,000 to £5,000.

This move will severely limit personal injury claimant’s ability to access legal services.

At Pearson Rowe we strongly believe that this policy cannot go ahead and we have joined a number of leading law firms in England and Wales to petition the government to stop the proposals becoming reality.

If you would like to join us in this petition, please click here.