Curwens Solicitors

FAQs - BUSINESS SERVICES

New Business Startups

Q: How do I incorporate a company?

A:You can instruct Curwens to incorporate the company on your behalf. We will prepare the incorporation documents including the Memorandum and Articles of Association and we will prepare the statutory books to suit your requirements. Alternatively, if you have experience in these matters, you can incorporate the company yourself online but you will still be required to produce the Memorandum and Articles of Association.

Q: How do I protect minority rights in a company?

A:You can instruct Curwens to prepare a Shareholders’ Agreement which can incorporate the following minority protections, depending on your requirements:

• • Class rights
• • Rights to directorship
• • Drag and tag along clauses
• • List of decisions requiring unanimous or majority shareholder consent
• • Transfer restrictions
• • Compulsory transfers
• • Rights to financial and other information
• • Quorum for members’ meetings and directors’ meetings

Q: What information do I need on my e-mails and website about my company?

A: As of 1st January 2007 UK companies and LLPs require the following information on their website and in their e-mails:

• • The company name (this might differ from the trading name)
• • The company registered office (which must be a geographical address not a PO Box)
• • The company’s registration number and country of registration
• • An e-mail address where the company can be contacted (requirement not necessarily for e-mails) 
• • If the company is a member of a trade or professional association, membership details, including any registration number (requirement not necessarily for e-mails)
• • It is also advisable but not essential for the business to place its VAT number on the website and e-mails as well.
  Note – the information must be clear and easily accessible. However, for a website, it does not need to appear on every page; for example, the information can be included on an “about us” or “legal” page. For e-mails, the information can be contained in a footer.

   

  
  Q: How do I go about purchasing a business?

  A: Curwens has guides to purchasing businesses and companies which are available on the helpful downloads section.
  
  
  Q: What things should I consider when setting up a new business?

  A: Type of entity to be used, example, sole trader, partnership, limited liability partnership, limited company, company limited by guarantee etc. The choice would be governed usually by tax considerations as well as personal liability consideration.

  • • If you are to use a company, you will need to consider the constitutional documents such as Memorandum and Articles of Association. You will also need a Shareholder’s Agreement to be in place if you are entering business with more than one party.
  • • If you are using a partnership or an LLP, you will need a Partnership Deed or an LLP Agreement to govern the relationship between yourself and other parties.
  • • Terms and Conditions of Business will need to be drafted or reviewed.
  • • General contract drafting and negotiating may need to be undertaken.
  • • Advice on Distribution Agreements, Agency Contracts, Competition Law, Data Protection Law and Intellectual Property Law may be required.
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  • • You will need to appointment an accountant and we can help you by recommending a good accountant to suit your needs.  
  • • You will need a bank, again we can assist you with appointing a bank.
  • • Owner’s personal matters:
    
           - Keyman Insurance
           - Income Protection Policy
           - Pension
    
    • Review of following business needs: 

     

    •      - Terms of Business/ invoicing 
    •      - Website/stationery
    •      - Employment contracts
    •      - Policies in place such as discrimination, health & safety, grievance procedure etc
    •      - Debt recovery requirements
    •      - Commercial disputes
    •      - General contracts review 
    •      - Escrow account services 
    •      - Property issues, leasehold, freehold or rental agreement

    There is a business start-up checklist available in our helpful download section which goes into more detail on the above. 

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    Business Support

    Q: What are my duties as a director of a company?

    A:Directors’ duties are now set down in the Companies Act 2006 (the “Act”). The Act replaces common law fiduciary duties with a statutory statement of the main general duties owed to the Company. The seven new general duties are as follows:
    
    • Duty to act within powers (Section 171);
    • Duty to promote the success of the Company (Section 172);
    • Duty to exercise independent judgement (Section 173);
    • Duty to exercise reasonable care, skill and diligence (Section 174);
    • Duty to avoid conflicts of interest (Section 175);
    • Duty not to accept benefits from third parties (Section 176); and
    • Duty to declare interest in proposed transactions or arrangements with the Company (Section 177). 
    
    The above is not a definitive list of all the duties that a director owes to a company, as there are a number of other responsibilities relating to the delivery of accounts and issues relating to insolvency, which are covered by other sections of the Act or by other legislation.

    Q: What information should I have on my company’s website and e-mails?

    A:Compliance with the Companies Act 2006 now requires that the following information must appear on company websites and in e-mails:
    
    • The company name (this might differ from the trading name, in which case the difference should be made clear);
    
    • The company’s registered office address (which must be a geographical address, not a PO Box);
    
    • The company’s registration number and country of registration;
    
    • An e-mail address where the company can be contacted (requirement not necessary for e-mails);
    
    • If the company is a member of a trade or professional association, membership details, including any registration number (requirement not necessary for e-mails).
    
    It is also recommended (although not a requirement) that if the business has a VAT number, it is also stated.
    
    The information must be clear and easily accessible. However, for a website, it does not need to appear on every page; for example, the information can be included on an “about us” or “legal” page. For e-mails, the information can be contained in a footer.

    
    Q: What is an EPC and does it apply to my Company?

    A: An EPC is a document which sets out a building’s energy rating.  That rating will be based on the performance potential of the building itself, i.e. its fabric and its services such as heating, ventilation and lighting and will range from A to G with A being very efficient and G being very inefficient. 

    Almost all commercial buildings require one in the following circumstances:

    Situation	Responsible Person
    New builds	Building Contractor
    Sale of freehold	Freehold seller
    Buildings to be let	Landlord
    Assignment of a Lease	Assignor
    Lease of a building being sub-let	Outgoing tenant

     

    Q: Q. I have a contract that I need advice on, can you help?

    A: Our commercial team have a wide range of experience in reviewing, drafting and negotiating contracts of all nature. We can assist you to protect your interests and protect you from liabilities by amending a contract to suit your needs. We can also draft bespoke contracts to suit your needs.
    
    
    Q: How do I remove a director?

    A: In order to remove a director, you will need to serve a special notice to hold an extraordinary general meeting with the members at which an ordinary resolution will be considered to remove the director. The director concerned is entitled to make representations in writing to the company and to request notification of such representations to each and every member to whom notice of the meeting is sent. That director will need to forward those written representations to the company secretary in good time for the copies to be sent out to the members. At the extraordinary members meeting, there will be a vote following the director’s representations to the meeting as to whether the director should be removed. You should note that if the director is removed by ordinary resolution of the members, the director may well have an employment claim. Therefore, you should seek the advice of our employment team in this respect.
    
    Q: I have a dispute with a supplier which needs resolving. Can you help?

    A: We have an experienced dispute resolution team who can assist with your matter. Please refer to our dispute resolution team.

    Q: What are my obligations under the Data Protection Act 1998?

    A: We have a “guide to notifications under the Data Protection Act 1998” in our helpful downloads section.

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    Sales, Acquisitions, Restructing

    Q: When transferring assets from one business to another what third party consents will I require?

    A: We have a “business assets transfer checklist” available to download in our helpful downloads section.

    
    Q: How do employees transfer from one business to another?

    A: The Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) applies and there is a “guide to TUPE in a business assets sale and purchase” in our helpful downloads section.

    
    Q: What effect does the Companies Act 2006 have on my company?

    A: There is an article on “the Companies Act 2006” and how it affects your company in our helpful downloads section.

    
    EMPLOYEES
    Q: The target business has 10 staff, how do I ensure they do not all leave as soon as I take over the business?

    A: Employees transfer at completion as a matter of law. However, employees are free to give notice to leave under their contracts of employment. A purchaser should ensure that he remains in close contact with the seller during the negotiation and due diligence stages to ensure they are informed of anyone giving in their notice during the lead up to completion.

    
    Q: Will I have to pay for staff holidays that have not been taken by the date of completion?

    A: The costs of employees including salaries, benefits and accrued holidays are apportioned at the date of completion and therefore you will only pay for holidays due after completion. You should note that the contracts of employment will set out what holidays are due for each employee, however the statutory minimum is 5.6 weeks paid holiday including bank holidays.

    
    Q: Some of the staff do not have written contracts, how do we know what rights they have as employees?

    A: All employees have statutory rights and the terms of their employment will be implied into their contracts by statute and common law. You should note that employees have a right to written terms of employment and therefore, you should arrange for this to be done as soon as possible after completion.
    
    TRADING CONTRACTS
    Q: How can I be sure that I will retain the trading contracts?
    A: One of the completion documents will be an assignment of the goodwill and contracts of the business which means you as the purchaser, will have the right to stand in the shoes of the seller after completion and complete the contracts currently in place.
    
    Q: Do I need the consent of third parties to the trading contracts in order to take over the contracts?
    A: Some contracts do require the consent of third parties for them to be assigned or transferred to a purchaser, such as leases, hire purchase contracts and distribution agencies. Consent can be obtained from the third parties involved either running up to completion or after completion. If consent is being sought after completion, the purchaser will be dealing with the contract as trustee for the sellers until such time as consent is obtained.
    
    Q: Will I have to keep buying from the same suppliers after completion?
    A: No, you are free to choose who you purchase your supplies from after completion and can change suppliers if you so choose. However, any current supply contracts should be checked to ensure there are no penalties for terminating them.
    
    Q: What happens if a supplier refuses to supply me following completion?
    A: If there is no requirement to continue to supply pursuant to any contract in place with the Target, then you will need to find an alternative supplier.
    
    Q: Do I have to take on all the contracts of the business including the lease hire contracts?
    A: It is for the purchaser to negotiate with the seller prior to completion as to what assets and/or liabilities the purchaser is to take on following completion. Most assets that are subject to lease hire contracts are usually vital to the smooth running of the business and therefore, a purchaser will need to take these liabilities on following completion.
    
    COMPETITION
    Q: What do I do if the seller sets up in competition around the corner from the premises?
    A: You can avoid the risk of this happening by ensuring that the contract contains fair and reasonable non-competition restrictions setting out what the seller cannot do following completion.
    
    Q: Can the seller continue to use the business name after completion?
    A: The Deed of Assignment of goodwill and other related contracts will be worded in such a way that the business name is included in the purchase and the seller agrees to transfer the business name to you. The wording in the contract will include a restriction on the seller using the same name or a similar name following completion.
    
    LEASEHOLD PROPERTIES
    Q: I am buying a business which has a lease that has five years left to run. Can the Landlord remove me as a tenant after the five years is up?
    A: A tenant who has complied with the terms of the lease has a right of renewal unless:
    
    • The Landlord can show that he intends to redevelop;
    • The Landlord offers suitable alternative accommodation; or
    • The Lease takes away the renewal rights (this is rarely the case with retail/catering leases).
    
    Q: The Lease states that I require the Landlord’s permission to assign the Lease or change the business that I run from the premises. What is to stop the Landlord from refusing to allow me to do these things?
    A: Usually the Lease will state that the Landlord cannot unreasonably withhold consent, however, the Landlord will ask to review any accounts of the prospective buyer of the Lease and ask for references on that prospective buyer. The Landlord may also ask for a rent deposit to be paid.
    
    Q: When the rent under the Lease is due for review, is there any cap on the amount of increase?
    A: In most Leases, the rent review clause has a provision that the rent is increased to the market rate at the time. However, if the market rate has dropped since the previous review, the rent will not usually be reduced.
    
    APPOINTING A LEGAL ADVISOR
    Q: Do I need to appoint a legal advisor?
    A: Most sellers and purchasers of a business do not appoint a legal advisor until a very late stage. It is to the advantage of both a seller and a purchaser to appoint a legal advisor at a much earlier stage in the process. The legal advisor can provide advice on how to approach a business sale and or purchase and how to deal with the due diligence process prior to contractual documentation being drawn up. This can save an awful lot of time, effort and agony on both sides.
    
    If a purchaser and seller are agreeing heads of terms, a legal advisor should always be brought in to review the heads of terms to ensure they are effective and cover the issues that need to be covered prior to contractual documentation being drafted.

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    Commercial Property

    Q: What will it cost to purchase/negotiate a lease on the property?

    A: This will depend on a number of factors. Clearly the work is different depending upon whether the instructions you give us are to purchase the property or obtain a lease. In each case the main element of cost is the amount of time spent on the work but we may be able to offer a fixed price at the outset. We will undoubtedly offer an estimate of costs with details of disbursements (payments we will pay to others on your behalf as part of the work to secure the property). We will provide this in advance of accepting instructions to deal with the matter.

    Q: Do I have to pay Stamp Duty Land Tax (SDLT)?

    A: Whether you pay SDLT is dependent upon the purchase or lease value of the property. Currently, on a purchase, if the cost of the property is between £150,000 and £250,000 SDLT is charged on the whole of the purchase price at 1%. Between £250,000 and £500,000 it is 3% of the whole price and above £500,000 it is 4% of the whole price. You should also be aware that if VAT is payable then the SDLT is calculated on the whole amount of the price including the VAT. SDLT is also payable on some leases and this depends on the term of the lease (ie how long the lease is for) and the amount of rent payable each year. Your solicitor will explain if it applies and calculate the likely amount of SDLT at the outset so you know the cost early on. Please note that SDLT is payable by the buyer or the tenant ie by the person taking possession of the property.

    Q: I am a tenant. My lease runs for several more years. Can I settle up and move on?

    A: The term of a lease is legally binding upon all the parties and cannot be renegotiated. There are however, mechanisms that allow you to either sell the lease to someone else for the remainder of the term or if the lease includes a Break Clause you may exercise this facility at the appropriate time. Selling the lease to someone else is often the best way forward. This will involve seeking the consent of your landlord and finding a new tenant, one who is willing to pay the price you are asking. The landlord will normally undertake the necessary check of references and financial standing, in the same way as when you yourself took the lease. A break clause is a clause in the lease terms that provides for a review of the lease with the option to give it up without further penalty. It normally happens at fixed points in time in the period of the lease and if you miss it you lose the opportunity to exercise it. It will require you to provide written notice and is usually conditional on all the sums due under the lease having been paid up to date. Break Clauses are negotiated before the lease is entered to and included in the terms of the lease. They are not added once the lease is in effect. Sometimes it is possible to obtain agreement of the landlord allowing you to surrender the lease but normally he or she will want an additional payment from you to agree this.

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    Landlord & Tennant

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  Employer Advice

  Q: It has come to my attention that one of my employees has recently committed an act of misconduct. What should I do?

  A: On 6 April 2009 ACAS’ Code of Practice 1 brought new changes to disciplinary procedures. You should carry out investigations without unreasonable delay. In some cases this will mean that you will need to hold an investigatory interview with the employee and in other cases it will mean that you will need to collate evidence for use at the disciplinary hearing. If possible, different people should carry out the investigation and disciplinary hearing. If you suspend the employee with pay, this period should be as brief as possible and should be kept under review. You shall also make it clear that the suspension is not a disciplinary action. If you decide that there is a case to answer you should notify the employee in writing including sufficient information about the alleged misconduct and its possible consequences to allow the employee to prepare for the disciplinary meeting. You should include copies of any evidence including witness statements with your letter. Your letter should also give details of the time and venue for the disciplinary meeting and advise the employee of their right to be accompanied. You should thereafter hold the meeting, allow the employee to be accompanied, decide on the appropriate action and provide the employee with an opportunity to appeal.

  Q: One of my employees is returning to work after maternity leave. She has informed us that she has a right to work part time. Is this correct?

  A:There is no absolute right to work part time. However, if you refuse her request without justification, it may amount to indirect sex discrimination or less favourable treatment of a part time worker. In deciding whether your requirements for her to work part time is justifiable, a Tribunal must not simply consider whether you have good reason for requiring her to work full time. Rather, a Tribunal will consider your reasons as against the discriminatory effect on the employee.

  Q: One of our employees is alleging that we discriminated against him due to his disability in that we failed to make reasonable adjustments. Do I have an obligation to consent to any adjustment he requests?

  A:The Disability Discrimination Act suggests that as an employer you may have to make reasonable adjustments. In order to consider whether it is reasonable for you to make the necessary adjustments an Employment Tribunal would consider the extent to which the adjustment will have prevented the disadvantage, the practical ability of you making the adjustment, your financial and other resources, the availability of financial or other assistance to make the adjustment and the cost of disruption.

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  Dispute Resolution

  Q: Do you offer payment options?

  A: There are various options. Firstly you should check your insurance policies which often include legal expenses cover. If the claim is accepted by your insurer then they will pay your fees. If you do not have such cover you may be able to obtain it from an 'after the event' insurer, although this kind of cover can be expensive. If you are paying for our services yourself we will give you full details of our rates and indicate the approximate times when funds will be required to purse the matter. In the unlikely event that your matter qualifies for Legal Aid, we will make sure that you are advised accordingly. Please note that Curwens does not operate a Legal Aid franchise and you will need to appoint another firm of solicitors.

  Q: What will it cost to resolve this dispute?

  A: Each situation has its own variations and hence it is not possible at the outset to ascertain the total cost of completing the work. We do fully understand that you will wish to keep costs to a minimum and we will assist by giving you clear explanations of your options, throughout the matter. We will give you an estimate and in some case can offer a fixed-fee service for you. We will always discuss with you whether there is greater merit in continuing the case or whether it would be more beneficial to settle. We will try to ensure that you remain in control.

  Q: What are the rules about paying the other sides costs? Can I claim my costs from the other side if I win?

  A: Generally speaking if the claim is for less than £5,000 then each side will pay their own costs, whether winner or loser. If the claim is greater than £5,000 then the winner’s costs are normally paid by the loser. This is not always the case and the judge will ultimately decide. Even if you win and the judge orders costs be paid by your opponent, you will not always receive the whole amount and on top of this, if the loser ultimately cannot pay, then you may receive nothing. We are experienced in managing negotiations, ensuring that the court we see how hard we worked to achieve a reasonable settlement prior to the hearing, thus aiming to keep costs down. Assuming we then win, the court will often see that the now higher costs were not our fault and will, accordingly, decide in our favour. You, our client, will ultimately be responsible to Curwens for our costs.

  Q: The $64,000 question – Will I win?

  A: We cannot guarantee a particular outcome. Many factors influence a judge. He or she is human after all and the decision may come down to small details or how convincing a particular witness is, on the day. We will of course give you an assessment of the strength of your case and any factors giving concern about the outcome. With this information, we will discuss with you the cost implications of proceeding to trial versus the option of trying to come to an acceptable settlement.

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  Debt Recovery

  Q: How Quickly Will I Get My Money?
  A: Often it can be quick, but it will depend on your particular circumstances. Often our initial letter will yield a good result but sometimes other factors emerge such as:
  
  • The debt is disputed
  • The debtor moves away or goes into recievership, liquidation, administration  
  • The debtor actually has no money
  • The correct identity cannot be established
  • The debt is very old
  
  With slow payers, it pays to take action as soon as possible, otherwise you may find that you were too late. Very often slow payment is due to cash flow problems. So, if a debtor has only £5,000 but owes £25,000 worth of bills, they will usually pay the people that don’t ‘let them off the hook’.
  
  Our advice then is not to let the money run out. Once you employ our services they should realise that it is in their own interest to resolve the matter and also that you are serious about recovering your money.
  
  Q: What Do You Actually Do?
  A: It depends on the debtor but we usually write to them but in some circumstances we may telephone them. We would always follow up any telephone call with a letter to confirm what has been said. If the debt cannot be resolved or the debtor does not respond, the next step is legal action.
  
  If our initial approaches do not bring about a positive response from your debtor, we will normally proceed to Litigation. We will do this only if we think it is likely to produce a positive result (If it becomes clear that they have no money then litigation will be a waste of your money). You may then decide to write off the debt.
  
  
  Q: What If The Company Goes Into Receivership/Liquidation, Can I Get My Money?
  A: If it very difficult to obtain full payment from a company that is truly in receivership or liquidation. Often you may be told that this is the case before it has actually happened. We can check this for you and take appropriate action if the company is still trading. If the company has failed, we will ensure that you are informed of meetings and who the other creditors are.
  
  Q: Can You Provide Legal Advice?
  A: Yes, of course! Other debt collection services can’t do this. We can advise you of the legal process of litigation and give you a clear understanding of the cost vs benefit equation. If it better to settle with your debtor for a far smaller sum we will advise you so.
  
  Q: When Do I Have To Pay You?
  A: You will be invoiced once the work is completed.

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  FAQs - PRIVATE SERVICES

  Divorce Separation

  Q: What are the grounds for Divorce in England?

  A: All divorces in this country are obtained by proving that your marriage has “irretrievably broken down”. You must rely on one of the five legal grounds listed below:
  
  1. Your spouse has committed adultery and you find it intolerable to continue living with them.
  
  2. Your spouse has behaved in such a way that it would be unreasonable to expect you to continue living with them.
  
  3. Your spouse has deserted you for a continuous period of two years or more.
  
  4. You and your spouse have lived separately for a continuous period of two years or more and both of you consent to the divorce.
  
  5. You and your spouses have lived separately for a continuous period of five years.
  
  Further conditions on divorce are that you must have been married for at least a year before you start the divorce proceedings and one of you must have been living in the UK for the last twelve months. It does not matter if you were married in another country. If neither of you have lived in the UK for the last 12 months, contact us for more specialist advice on jurisdiction as it still may be possible for an English court to deal with your divorce.
  
  For more information see our download
   

  Q: Do I have to have a Solicitor?
  A: No, it is not necessary to obtain the assistance of a solicitor but it can definitely help. During the divorce process you will be required to fill in court forms and to respond to reasonable enquiries from your spouse, or their solicitor If any of the paperwork is completed incorrectly, this can cause delay and sometimes even increase the court fees payable. We can ensure all the papers are in order for you so that the process is as quick and simple as possible.
   
  A solicitor will also give you a clear understanding of what you might expect as a financial settlement ie how to divide the assets from the marriage. You may not be aware of how the courts decide such things and the early advice of a solicitor will help you to plan for a realistic and fair settlement. It is important to try and negotiate to settle the financial issues amicably. A solicitor will assist you in doing this. This is important as if the court decides you have acted unreasonably at any stage, they can require you to pay some of your spouse’s legal costs.
  
  Q: What will happen to our children?
  A: As part of the divorce proceedings, a Statement of Arrangements for Children form has to be completed so that the court can be satisfied that the needs of any minor children are met. We would always encourage you to reach an agreement with your spouse on children issues wherever possible. However, we can take emergency action to safeguard your position if you felt the children were ever at risk.
  
  The feelings and wishes of any child (depending on their age) should be a high priority when making arrangements following the breakdown of the marriage. You need to decide where any child is going to live, and how much time they will spend with each parent. If you cannot agree, the Court will intervene but this is costly and ideally you would be directed to use mediation or the collaborative process to resolve any children issues.
  
  Q: What will it cost to get divorced? Are there additional costs?
  A: At Curwens we offer a fixed price divorce. The court fees remain the same (£340 in total) but our fees will depend on how much of the work you are prepared to do yourself…from a complete DIY package, to full representation.
  
  Resolving any issues regarding the arrangements for the children and the finances are separate services because they are more complex and unique to your personal circumstances. These services are chargeable on a time basis – depending on how long it takes to bring matters to a conclusion. If you cannot reach agreement about these issues amicably, the cost will be greater. We encourage prompt and realistic negotiations aimed at reaching a positive agreement wherever possible.
  
  Solicitors are obliged to give you information at regular intervals about how much the costs are. Public Funding (Legal Aid) may be available, but usually you have to pay back your costs to the Legal Services Commission if you recover any assets (including the matrimonial home). Unfortunately, Curwens no longer operate a Public Funding franchise.
  
  Q: Who gets the house? How can I make sure I get my personal things out of the divorce?
  A: This very much depends on your family’s circumstances – for eg how long you have been married, whether there are minor children, and what other assets and income you each have.
  
  Generally speaking, all the assets (the house, cars, savings etc.) are considered “family assets" regardless of who bought them or whose name they are held in. Firstly, there needs to be full disclosure of all these assets, along with any liabilities and details of income and businesses. Once you have exchanged this information we can assist you in trying to reach an amicable agreement over how to divide the assets between you. If agreement cannot be reached, it may be necessary to ask the Court to make a decision for you.
  
  You would usually each retain those personal belongings you bought or which were given to you. Under normal circumstances any difficulties are resolved quickly with or without the assistance of your solicitor.
  
  Q: Can I keep my pension?
  A: This will depend on its value, what other assets there are, and how long the marriage is. Pension values always have to be disclosed, but if you are both young, there are no children and the marriage was very short, you are likely to retain all of your pension fund. However, the court has the power to make a pension sharing order if it seems fair and reasonable in all the circumstances– this means a percentage of your pension fund is transferred into your spouse’s name at the time of the divorce.
  
  Q: Do I automatically start to use my maiden name after my divorce?
  A: No. Your legal name remains unaffected by the divorce proceedings, but if you want to simply revert to your maiden name this is possible using your birth certificate and the Decree Absolute (final divorce order). If you want to change to any other name, or revert to your maiden name without any divorce, you need a formal Deed which we can draw up for you.

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  Cohabitation

  Q: As a father, do I automatically have Parental Responsibility for my children?
  A: Only if you were registered as the father on the birth certificate after 1st December 2003. Otherwise, you will need to enter into a formal Parental Responsibility Agreement with the mother, or if she refuses, apply to the court for an order.
  
  Q: Can I be forced to sell my home?
  A: Yes. The court has powers to both force, and stop, the sale of a property.
  The court’s decision will depend on a number of factors such as:
  • whether there are any children to be housed, and if so, the needs and any disability of those children;
  • what interest you and your partner have in the home;
  • the financial position of you and your partner (for example could one of you afford to take over any existing mortgage and buy out the other’s interest in the property); and
  • whether there is a mortgage on the property
  
  Q: Can I claim maintenance from my partner?
  A: Not for yourself – even if you were dependant upon them.
  If you are the main carer of any children from the relationship, you would normally be entitled to maintenance whilst the child is under 18 and/or in full-time education. If the amount to be paid cannot be agreed, you will need to ask the CSA to make an assessment and/or apply to the court for an order.
  
  Q: If our home is owned jointly, does this mean I will definitely get 50% of the net proceeds of any sale?
  A: No. The court would have to take into account a number of factors to decide what interest you have in the property such as:
  
  • whether there are children to be housed, and if so, the financial position of each of you as their parents;
  • whether you hold the property as Joint Tenants or Tenants in Common;
  • whether there is any document (or other evidence) showing what interest it was intended you would have in the property; and
  • what financial contribution you made to the purchase and upkeep of the property (including making mortgage payments)
  
  Q: Can I make a claim against my partner’s pension?
  A: No. This would only have been possible if you had been married.
  
  Q: Do we have to go to court to resolve all the outstanding issues between us?
  A: Not at all. Court is a last resort for emergency action or when negotiation has failed. Using litigation often causes delay and increases costs. Therefore it is important to initially narrow down what is in dispute and then try to negotiate a fair settlement. You will need expert legal advice to do this, but may also benefit from the assistance of mediation or the Collaborative approach. Please see our separate pages on these subjects.
  
  Q: If my partner and I enter into a Cohabitation Agreement, is it binding on us?
  A: It can be, if you both had independent legal advice when the document was drawn up and none of your circumstances have changed substantially since you signed it. Even if it is no longer absolutely binding on you both, it is still evidence of what your intentions were in respect of any property or assets, for example.
  
  Q: What happens if I am not mentioned in my partner’s will?
  A: On their death, you could be forced to move out of your home if it is registered only in their name. Even if it is in joint names, you may end up having to sell your home if their share does not automatically pass to you and they have not given you a life interest in the property.
  You may have to make a claim against your partner’s estate to get financial assistance – such as maintenance and somewhere to live.

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  Children, Custody & Contact

  Q: How are child custody arrangements decided?
  A: The English courts use the terms Residence and Contact in respect of children. Residence means who the children live with on a day-to-day basis. Contact is how much time the children spend with the other parent. It is possible in some circumstances to have a shared residence situation. The courts prefer parents to agree the children arrangements amicably and solicitors can assist in negotiating terms, or can refer you to mediation or the collaborative process. The courts can make orders on the issues of residence and contact if necessary.
  
  Q: I have lost custody of my child, following divorce. I want to sort out visiting arrangements. What should I do?
  A: You really need to speak to one of our expert family solicitors as all cases need to be viewed on an individual basis as they are each unique. In general terms, however, if your spouse has residence of the children (ie they live with him/her) it would be usual for them to still have regular contact with you. It is preferable to agree these arrangements with the other parent, but if this fails, you can apply to the court for a Defined Contact Order.
  
  Q: My ex-spouse is being difficult about my visits to see my child(ren). What can I do?
  A: Ideally, you want to use a solicitor (and they may suggest a mediator can help) to try and resolve the difficulties amicably. However, if negotiating proves impossible for some reason, you will need to make an application to the court for a Defined Contact Order, and our specialist family team can help you do this.
  
  Q: My ex-spouse is not keeping up their maintenance payments for our child(ren). What should I do?
  A: This will depend on how those maintenance payments were agreed. If there is a court order setting out the terms, then you should take legal advice immediately to find out if you can enforce those terms by going back to the court. If the payments were agreed amicably originally or through an assessment by the Child Support Agency, you need to use the CSA to help you, and we would advise you to contact them urgently. If the CSA does not seem to be dealing with your case promptly, or fairly, then you may need further legal advice to assist.
  
  Q: My ex-spouse is making a fuss about our children meeting my new partner. What rights does my former spouse have to stop my children meeting my new partner?
  A: If your former spouse has parental responsibility for the children (see question ?) then they have a general right to know how the children are. Even if they do not have PR they could probably apply to the court to seek an order for this, and in any event will no doubt feel they have the right to be concerned about the children. Whilst it would be very difficult for your former spouse to stop your children meeting your new partner, you may want to think about trying to agree how and when it happens with your former spouse – or at least keep them updated about it goes. Otherwise, you may have exactly the same problem, but in reverse, if your former spouse wants to introduce the children to any new partner they have in the future.

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  Wills & Trust

  Q: Why make a Will?

  A: It is estimated that around 300,000 people die intestate (without a Will) every year. This means that the assets owned by you at your date of death will pass under the intestacy rules and not necessarily in accordance with your wishes. The main benefit of making a Will is that you can control how your assets are divided when you die and ensure that your loved ones are provided for as you see fit. Making a Will also means that dealing with your estate will be a simpler (and possibly cheaper) exercise for your family than would be the case if you die intestate.

  
  Q: When should I make a Will?

  A: Now. It will give you the peace of mind of knowing that your express wishes will be carried out when you die. If you already have a Will but have recently married or divorced or if your circumstances have changed (for example, if the size of your estate has increased meaning that tax efficiency should be considered) then you should make a new Will.

  
  Q: How much does it cost?

  A: We charge £150 plus VAT for a single Will or £250 plus VAT for double Wills in similar form. There will be additional charges if your Will is complex, for example of it includes a discretionary Trust or involves a lot of time and meetings, if you request a home visit or if tax planning is required. The basic cost structure will not be exceeded without discussing this with you beforehand.

  Q: What is an Executor?

  A: Your Executors are the people who will deal with your estate after your death. They will collect and value your assets, settle any debts and discharge any inheritance tax payable, distribute any specific legacies (such as personal belongings) or money gifts you have left then distribute the remainder of your estate (the residue) in accordance with your Will.
  
  We recommend that you appoint at least two Executors in case one of them is unable to act for any reason. This can be your spouse, any relative or friend and/or a professional Executor such as firm of Solicitors.
  
  The role of your Executors will extend to holding monies as Trustees for any beneficiaries who are under 18 at the date of your death until they are old enough to receive the gift you leave them in your Will.
  
  Q: What is a Guardian?

  A: In your Will you can state who you would like to care for your children in the event of your death. The appointment of a Guardian usually takes effect on the death of the second parent. However, if you wish somebody other than your child’s surviving parent to become their Guardian then your Will may be used as evidence of your wishes in any subsequent Court proceedings relating to your children.
  
  The duties of a Guardian are similar to those of a parent. They are responsible for the day to day upbringing of your child as if he or she was their own.

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  Disputing a Will

  Q: I have a suspicion that the deceased person was not fully aware of the decisions they were making about their Will. What can I do?

  A:If you suspect the deceased lacked mental capacity to make a Will, you should consult a solicitor to make enquiries because there is a protocol which should be followed – it is called the “ACTAPS Protocol” on the website of the Association of Contentious Trust and Probate Solicitors - see www.actaps.com This sets out steps which must be taken to investigate the position, including making enquiries with the deceased’s GP to check capacity.

  Q: I know that the deceased person wanted me to receive something from their Estate. The Will apparently does not provide for this. Is there anything I can do to challenge the Will?

  A:There are various ways to challenge the validity of a Will. It may not have been properly executed (there are strict rules about that) or the deceased may have suffered undue influence, duress or lack of mental capacity prior to making a Will. You can also challenge the Will if you were financially dependent upon the deceased. The ACTAPS protocol sets out the method for investigating this. You will also be well advised to speak to a specialist solicitor with experience of such cases who may be able to negotiate a suitable settlement for you.

  Q: What does it cost to challenge the validity of a Will and can I get legal aid?

  A:The way to challenge a Will is to follow the ACTAPS protocol (www.actaps.com). Legal aid is sometimes available, subject to a financial means assessment. Otherwise, these actions are costly and so you should consider carefully whether the benefit of pursuing such a claim outweighs the costs which can some times run into many hundreds and sometimes thousands of pounds.

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  Powers of Attorney

  Q: What is a Lasting Power of Attorney?

  A: A Lasting Power of Attorney (LPA) is a document which gives somebody you trust (your attorney) the power to deal with your property and financial affairs, or make decisions about your health and welfare, for example where you live or your medical care. This is an important safeguard for the future meaning that your appointed attorney(s) can quickly begin to act on your behalf should you lose the capacity to manage your own affairs or make decisions for yourself, due to old age or poor health.
  
  We offer a fixed fee for preparation and registration of both types of LPA (Property and Financial Affairs/Health and Welfare). If you wish us to prepare both documents we offer a significantly reduced price.
  
  Preparing your LPA now is a cheaper and simpler process than appointing a Deputy later on.
  

  Q: What is a Deputy?

  A: If the person you wish to help has already lost their capacity then we can help you apply to the Court to be appointed their Deputy. A Deputy is a person appointed by the Court of Protection to make decisions on behalf the person who lacks capacity. A Deputy has the power to make decisions about the property and financial affairs and health and welfare of that person.

  
  Q: What if I have an existing Enduring Power of Attorney

  A: If you made an Enduring Power of Attorney (EPA) prior to the introduction of LPAs then the EPA remains valid and your chosen attorney(s) can help you to manage your property and affairs (but not make decisions about your personal welfare). Should you show signs of losing capacity then your attorney(s) are under a duty to register the EPA with the Office of the Public Guardian. We can of course assist with the registration process and also in preparing an LPA to take effect alongside your EPA. This will mean that your attorney(s) can deal with decisions about your health and welfare (under the LPA) in addition to managing your property and affairs (under the EPA).

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  Probate

  Q: What is Probate?

  A: Probate is the procedure followed by the Executors or Personal Representatives after a person has died. They will need to swear an oath to obtain Grant of Probate which will give them the powers needed to administer the estate, for example, to distribute monies to beneficiaries under the Will (or the intestacy rules) and to transfer land or shares.
  
  If you have been appointed to act as an Executor by someone you have sadly lost then we can help you to relieve the stress and emotion of dealing with probate. We will work with you or deal with matters entirely should you wish. For smaller, less complex estates we offer a fixed fee.

   

  Conveyancing

  Q: How much will it cost to buy or sell my house?

  A: That depends on the value of the property/properties involved, if they are freehold or leasehold or if one of them is a brand new property. Fill in a Call Back Request or call us today for a quote.

  
  Q: How long will it take?

  A: It normally takes between six and eight weeks to complete a transaction so you can move. If your transaction is part of a chain then you will only move as fast as the slowest link in the chain.

  
  Q: Do I need to have a survey done?

  A:If you need a mortgage, a valuer will inspect the property on behalf of your lender to assess whether the property has a sufficient value to support the amount you want to borrow. You can usually arrange with the lender for a more comprehensive survey. We would strongly recommend either your own survey or the more detailed lenders report. The principle of 'purchaser beware' applies and you will buy the property as it is. Whilst the seller must not misrepresent any aspect of the property, he is under no obligation to disclose any defects.

  
  Q: Will I need a HIP to sell my property and when should I get one done?

  A: Contact us for detailed advice, but they will generally be required to sell your home and the Pack must be ordered before your property can go on the market.

  
  Q: What is an Energy Performance Certificate?

  A: Energy Performance Certificates (EPC) have been introduced to improve the energy efficiency of buildings. The certificate for a property will highlight how energy efficient it is, giving it a rating from A- G, where A is the most energy efficient. If you are buying or selling a home you now need a certificate by law whenever a building is built, sold or rented out. The certificate provides 'A' to 'G' ratings for the building, with 'A' being the most energy efficient and 'G' being the least, with the average up to now being 'D'. Accredited energy assessors produce EPCs alongside an associated report which suggests improvements to make a building more energy efficient.

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  Property Ownership Issues 

  PROPERTY DISPUTES

  Q: Can I access a neighbour’s land to carry out repairs?

  A: There may be a right of entry specifically for the purposes of inspection or repair in the property’s legal documents. If there is no such right, or no agreement can be reached, you can apply to the County Court for an Access Order allowing you to enter your neighbour’s land to carry out the repairs. There is a fee for the application.

  Q: Who is responsible for shared amenities?

  A: Where amenities such as drives, drains or roofs are shared between two or more properties, responsibility for maintaining/using them are usually outlined in the property’s legal documents. The legal documents may give you as a property owner rights over your neighbour’s property. Where they are not expressly set out in the documents they may nevertheles arise out of long, continuous and unchallenged use (usually 20 years). Where there is a need of repair the first step is to find out who is responsible for repairs. If the legal documents do not give a clear indication of liability then try to agree with your neighbour that any costs arising will be shared. It is essential that at each stage when a cost is incurred the household initiating the repairs has the consent of the other parties responsible.

  Q: How do I know who owns the boundary between my property and next door?

  A: Once again you should first check the legal documents. However, the boundaries between properties can differ from those described in the title documents or lease in certain circumstances. The most common are where they have been changed by agreement or by encroachment (occupation without permission). If you think that the boundaries are not defined in the title document or lease, or that the boundaries have been changed by agreement or encroachment, you will probably need to get legal advice.

  Q: Who is responsible for maintaining Party Walls?

  A: There are special rules covering structural work to party walls, the owner must notify neighbours about any work they intend to carry out. These rules allow for the agreement or objection to any work within certain time limits, and compensation and temporary protection for buildings and property. If there is no agreement an independent surveyor can be appointed to decide what work can be done, and how and when.

  Q: What can I do to claim for damage done by children?

  A: Whilst it is possible to sue a child for damages if they are old enough to know what they were doing, such an approach is unlikely to be successful at Court. However, it may be possible to sue the child's parents for negligence if they have failed to exercise the control that would be expected of a parent given the child’s age.

  Q: Can I do anything about my noisy neighbours?

  A: You should first try to speak with your neighbour and ask them to reduce the noise. If this approach fails there are a range of other remedies, depending on your neighbour’s ownership status: • If your neighbour is a tenant, you can contact their landlord and request that they enforce the tenancy agreement to prevent nosie levels being unreasonable. If the problem persists it is useful to keep a record/diary of the disturbances which can be used as evidence in any future action. • Local Authority tenants can contact the Local Government Ombudsman who may be able to recommend compensation if the local authority has failed in one of its duties. • Tenants of housing associations and other registered social landlords can contact the Independent Housing Ombudsman. Local authorities have wide powers to deal with noise nuisances and you should contact the Environmental Health Officer and ask them to investigate. If they consider there is a “noise nuisance” they can serve a notice on the person causing the noise, or on the owner of the property. If the noise does not then abate the local authority can prosecute them and obtain an injunction prohibiting the noise nuisance. Alternatively you can apply for an injunction in the County Court. If you are contemplating such action you should ensure that you have kept a record of those instances when the noise level has been unreasonable.

  Q: What can I do about overhanging branches or hedges?

  A: In the first place you should ask your neighbour to cut back the overhanging branches. If they do not agree you have the right to pare back the branches to the boundary line (unless there is a Tree Preservation Order in place)s below). The cut branches belong to the tree owner and should be offered back to the owner or disposed of with their consent. You have the right to complain to the local authority if the light to your property is blocked by a neighbour’s hedge which is more than two metres high. This may result in your neighbour having to reduce the height of their hedge. You must try to resolve the complaint with your neighbour before going to the local authority, and you may be charged a substantial fee before the local authority will consider the complaint. Either you or your neighbour can appeal against the local authority's decision.

  LEASEHOLD ENFRANCHISEMENT

  Q: Why should I enfranchise?

  A: Residents who own the freehold can grant themselves long leases at no charge or for a nominal price and can in addition reduce or remove ground rents. In many cases the control of the management will be taken over by the tenants or a company run by tenants or nominated by them. Finally it is often a good selling point with buyers. What are the requirements? In order to qualify the building must be a self contained block of flats (which includes a converted building as well as a purpose built one) and: • must have no more than 25% non residential use • two thirds of flats must be let to qualifying tenants A qualifying tenant must hold their flat under a long lease, ie for a term of more than 21 years. 50% of qualifying tenants of flats in the building must participate Please note that it is no longer necessary for a qualifying tenant to have owned a flat for a minimum period or to have lived in it.

  Q: Do I need a formal valuation?

  A: It is almost always advisable to do so. The formulae for calculating the valuation are complex. You will need to know the valuation even if only for the purposes of negotiating with the freeholder. The notice served on the freeholder must state the proposed price. If it is unrealistic it could invalidate the notice. The freeholder will undoubtedly employ a specialist valuer and the tenants will almost certainly need one to negotiate on their behalf. This sort of valuation is a specialist area of surveying practice. We can put you in touch with a firm with the right expertise.

  Q: I have heard that I have to pay the freeholder's costs. Is this true?

  A: Yes. The residents' nominee company pay the reasonable costs of the freeholder (and any intermediate landlord) in: • assessing the right of the tenants to enfranchise • dealing with the tenants notice and statutory procedure and • handling the valuation and conveyancing work. These costs comprise solicitors and surveyors fees. Costs must still be paid even if the tenants withdraw from the process.

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  Unfair Dismissal

  Q: What is the difference between an actual dismissal and a constructive dismissal?

  A: An actual dismissal occurs when your employer actually terminates the employment relationship. Constructive dismissal relates to your having resigned as a result of your employer’s actions and / or omissions.

  
  Q: Can anyone make a claim for unfair / constructive unfair dismissal at a Tribunal?

  A:No there is normally a pre-condition that you have to have been employed continuously for a period of at least one year. However, there are some exceptions to this rule in specific circumstances including if you believe your dismissal is pregnancy related or if you raised health and safety concerns and are dismissed as a result.

  
  Q: How long do I have to make a claim of unfair / constructive unfair dismissal at a Tribunal?

  A:You must ensure you submit your claim three months less one day from your effective date of termination (EDT) e.g. if your EDT was 10th May 2009 you would have to submit your claim by 9th August 2009 at the latest. Generally if you worked your notice period your EDT would be the final day of your notice period. If you were paid in lieu of notice it would be your last working day prior to the period you were paid in lieu. As a rule of thumb if no notice is given by your employer then you should take your EDT as the date you were told you were being dismissed or in cases of constructive unfair dismissal the date you resigned. If you have any doubts about when you should be submitting your claim you should seek legal advice.

  
  Q: Yesterday I called my employer and told him I would not be into work as I was sick and had a medical certificate. When I went to work today my services were terminated. Is there anything you can do for me?

  A:Yes. This appears to be a case of wrongful and unfair termination of your employment. You should seek legal advice as soon as possible.

  
  Q: If my employment contract was terminated by mutual consent can I still make a claim for unfair dismissal?

  A:When a contract of employment is terminated by mutual consent or by agreement between employer and employee, in theory the employee has no entitlement to claim unfair dismissal. However, if the facts surrounding the termination indicate that you were pressured by your employer to resign, it could be held that you were in fact dismissed and this could be classed as unfair. Therefore in such a case you may still wish to submit a claim of unfair dismissal.

  
  Q: I have been sacked out of the blue by the company for which I work. Can they do so without giving me a warning?

  A:There are circumstances where it would be lawful for an employer to terminate your employment summarily for example due to gross misconduct on your part. However, employers should still operate a fair process and complete proper enquiries about any such alleged behaviour. You should seek legal advice promptly if you believe that there is no genuine reason for your dismissal and / or the company have failed to follow any proper procedure.

  
  Q: I have been bullied and harassed by my employer for a number of years and it was getting so bad I felt I could not stay there any longer. I have just resigned and want to know whether I can now lodge a claim of constructive unfair dismissal?

  A:Yes you may have a potential claim of constructive unfair dismissal. You would, however, need to establish that your former employer had committed a fundamental breach of your terms and conditions of employer, or a series of breaches, and that you resigned immediately in response to those breaches. You should be aware that if you have left it a number of years before leaving, or at the very least raising a formal grievance, you may have waived your right to make such a claim but it is best to seek legal advice on this.

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  Discrimination

  Q: I was made redundant allegedly due to the downturn in business. However, orders are not down and I suspect I am being made redundant due to my age. Other younger staff are still being employed. Can you help me?
  A: Yes, on the face of it there is a potential claim. It appears to be a potential case of age discrimination given that everybody else employed by them are in their 20s.
  
  Q: What are the penalties for discrimination?
  A: If an employer is found guilty of discrimination, they will probably be ordered to pay damages to the employee (or job applicant) concerned. The damages are designed to restore any financial loss which the victim suffered. The award is likely to consist of compensation covering the financial loss that the employee has suffered and possibly an element for injury to feelings. The size of this award depends upon the seriousness of the discrimination and the effect it has had on the individual concerned. It is usually between £500 and £30,000 but there have been cases where injury to feelings has been assessed at many multiples of the higher sum. There is no maximum amount of compensation which can be awarded.
  
  The Tribunal can also order the employer to take action to reduce or obviate the adverse effects on the individual of the act of discrimination. Failure to comply may lead to further financial penalties.
  
  Q: I am a disabled person can I ask for any adjustments to be made to assist me in my employment by my employer?
  A: Yes, under the Disability Discrimination Act, your employer has a duty to make 'reasonable adjustments' to make sure you are not put at a substantial disadvantage by employment arrangements or any physical feature of the workplace, if they have actual or constructive knowledge of any condition which may amount to a disability as defined by statute.
  Examples of the adjustments that your employer should consider, in consultation with you, include:
  
  • allocating some of your work to someone else
  • transferring you to another post or another place of work
  • making adjustments to the buildings where you work
  • being flexible about your hours - allowing you to have different core working hours and to be away from the office for assessment, treatment or rehabilitation
  • providing training or retraining if you cannot do your current job any longer
  • providing modified equipment
  • making instructions and manuals more accessible
  
  Q: I am an employee on maternity leave. I am due to come back to work soon but want to work on a part time basis. Is there a particular way I need to approach this with my employer?
  A: In order to make an application for flexible working you must follow a formal process under the Flexible Working Regulations. 
  
  You must:
  • submit a written request to your employer which must include the date of the current application, the date of any previous application or confirmation that there has been none, a statement that the application is being made under the statutory right to request flexible working pattern, confirmation that the you have responsibility for the upbringing of the child and your relationship to the child, the flexible working pattern applied for and the date it should come into effect and an explanation of what effect, if any, you think the proposed change will have on the employer and suggestions as to how the effect may be dealt with.
  • Within 28 days of the application, the employer must either write to you agreeing the variation or hold a meeting to discuss it.
  • The employer must give you a written decision within 14 days after the meeting.
  • If the employer agrees with the request, the decision must specify the contract variation agreed to and the date when it will take effect.
  • If the request is refused, your employer must specify the grounds of refusal and sufficient explanation why those grounds apply. The refusal must be dated and set out the appeal procedure. The employer can refuse the application on certain specified grounds.
  • You can appeal within 14 days of your employer’s written refusal.
  • An appeal meeting must be held within a further 14 days.
  • Where an appeal meeting is held your employer must give a written decision within 14 days.
  
  It may constitute indirect sex discrimination if your employer unjustifiably refuses your request to change your hours for childcare reasons. 
  
  
  Q: I have been provided with a final written warning in relation to my performance and my employer says if I do not improve then he will have to dismiss me. However, I am pregnant. Is he allowed to do that?
  A: Unless you have reason to believe that your performance is in related to your pregnancy, yes, he is. He is not allowed to dismiss you because you are pregnant but he can dismiss you for poor performance.
  
  Q: Can job adverts specify an age requirement ?
  A: Adverts like this are not themselves unlawful but they can be evidence of a discriminatory decision. Anything which creates an expectation that the successful candidate will have to be around a certain age could potentially be discriminatory, unless it can be objectively justified. 

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  Redundancy and Changing Terms & Conditions

  Q: I have recently been made redundant by my employer and my job has been split up between a number of persons the principal parts of it being given to a much junior employee. Is there anything I can do?
  A: Dispute that there was a genuine redundancy situation and appeal against the decision to make your role redundant on basis your selection was unfair. If your appeal is unsuccessful, consider a potential Employment Tribunal claim for Unfair Dismissal and possibly age discrimination.
  
  Q: How Do I Qualify For A Redundancy Payment?
  A: You will qualify if it is a genuine redundancy situation (as specifically defined by legislation) and you have two complete years qualifying service.
  
  Q: How Much Notice Do I Get On Redundancy And Do I Have To Work It?
  A: Section 86 of the Employment Rights Act 1996 sets out minimum notice periods throughout the contract. An employer must give at least:
  
  • One weeks notice to an employee who has been continuously employed for one month or more but less than two years
  • One weeks notice for each whole year of continuous employment for an employee employed for two years or more but less than 2 years
  • 12 weeks notice for continuous service of 12 years or more
  
  Note: If you are contractually entitled to more notice than the minimum periods set out above, your contractual notice will prevail.
  
  Q: Once I Am Redundant Am I Entitled To Benefits?
  A: Once you are made redundant, you are entitled to benefits. You may be entitled to claim job seekers allowance which is a benefit for those who are unemployed or have worked less than 16 hours a week and who has continuing to look for full time work.
  
  The benefit that you are entitled to will be calculated depending on various factors:
  
  • Contribution based job seekers allowance if you satisfy the national insurance contributions conditions
  • Income based job seekers allowance if you have not paid national insurance contributions but you passed the means test
  
  Volunteering for redundancy should also not stop you from receiving benefits, provided your redundancy payment would not take you over the financial limit or means tested benefit which is currently at the threshold.
  
  Q: Who Pays My Redundancy Pay If My Employer Becomes Insolvent?
  
  A: If your employer becomes insolvent, the redundancy payment counts as a debt that takes priority over others.
  
  If your employer fails to pay you a statutory redundancy payment, you can apply to the redundancy payments office (RPO) by filling out the RP1 form for payment out of the national insurance fund.
  
  It is quicker to apply to the redundancy payment office on your employers insolvency, than to wait for any payment from the insolvency administrator. You can not claim the same sum twice.
  
  
  Q: How Much Am I Entitled To When I Am Made Redundant?
  
  A: If there is a contractual provision regarding redundancy payment in your contract which exceeds your statutory entitlement, you would be entitled to receive these sums.
  
  However, the default position is statutory redundancy pay and this is calculated as follows:
  
  • Half a weeks pay for each year of employment aged 18-21 inclusive
  • One weeks pay for each year of employment you was aged 22-40 inclusive
  • One and a half weeks pay for each year of employment you were aged 41 and over
  
  The weekly pay rate is currently caped at £380, and is subject to change at various intervals
  
  The amount of statutory redundancy pay is based on length of continuous employment, age and weekly pay. The maximum length of continuous employment that can be counted is 20 years. 

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  Compromise Agreements

  Q: When Would A Compromise Agreement Be Used?

  A:A Compromise Agreement is useful in the following circumstances: • Where there is, or there is likely to be a dispute between employer and employee and the employer is willing to pay compensation to the employee in order to prevent the matter going to the Employment Tribunal. • Where a person has been made redundant and the employer is offering higher payment over and above the statutory minimum or the contract terms • Where employer and employee agree that the employee will voluntarily leave the business and where there is a need to come to an agreement over severance terms.

  Q: How Will I Know If I Have Received A Compromise Agreement From My Employer?

  A:Compromise Agreements do not always have to be prepared in a formal document with the title ‘Compromise Agreement’ at the top of the page so it is not always obvious that an employee has received one. The key things to watch out for are a document or letter in which: • You are advised to take legal advice • Certain legislation is referred to, in particular the Employment Rights Act 1996 • It is mentioned that you have a right to go to the Employment Tribunal re

  Q: Why Do I Need A Solicitor To Negotiate With My Employer?

  A:In order for a Compromise Agreement to be binding it is necessary for the employee to receive legal advice. Under most circumstances this will be paid for by the employer, at least up to a reasonable limit. Failure to obtain proof of gaining legal advice could mean that if the employer does not pay what was agreed, you would not be able to contest the their failure to complete the agreement. Curwens Employment experts will provide you with the necessary advice and provide written proof of gaining necessary advice.

  Q: Are Payments Tax Free?

  A:Some payments arising out of a compromise agreement are tax free and some are not. For example any termination payment is tax free up to £30,000 but any payment of monies from the terms of your employment eg holiday pay are normally taxable. We will advise you specifically when we come to agreeing detailed terms with your employer.

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  Grievance & Disciplinary Procedures

  Q: I have just been told verbally to attend a disciplinary meeting with my boss today. I was not told I had done anything wrong until now. Is this right?

  A:Your employer should have followed the guidance set out in ACAS’ Code of Practice 1 which came into force on 06 April 2009. The Code promotes the resolution of disciplinary and grievance issues in the workplace. Your employer should have established the facts of the case in that it should have carried out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. This may have required your employer holding an investigatory meeting with you before proceeding to a disciplinary hearing. Alternatively, the investigatory stage may have been the collation of evidence by your employer for use at the disciplinary hearing. If your employer decided that there was a disciplinary case to answer you should have been notified of this in writing. The notification should have contained sufficient information about your alleged misconduct or poor performance and its possible consequences to enable you to prepare to answer the case at the disciplinary meeting. Your employer should also have included copies of any written evidence which may include witness statements. The letter should have given details of the time of venue for the disciplinary meeting and have advised you of your right to be accompanied at the meeting. The meeting should be held without unreasonable delay and have allowed you reasonable time to prepare your case. Although ACAS’ Code of Practice does not have statutory force, if your employer has not complied with the above basic practical guidance points set in the Code, an Employment Tribunal may be able to adjust any award made to you by up to 25% for unreasonable failure to comply with any provision of the Code.

  Q: A colleague is being disciplined under our work disciplinary procedure and I have been asked to accompany her to the hearing. What will I do at the hearing and if I go, could it be detrimental to my future with this employer?

  A:You may address the hearing and confer with your colleague during the hearing. You may put and sum up your colleague’s case and may respond on her behalf to any view expressed at the hearing. However, you will not be able to answer questions on her behalf. Your employer must allow you to take time off during working hours to accompany your colleague. If you cannot attend the proposed time for the hearing your employer must postpone the hearing to any reasonable time suggested by your colleague within five working days of the original date. It is unlawful for your employer to subject you to a detriment because you have accompanied your colleague to her disciplinary hearing. If they dismiss you because you accompanied your colleague to her disciplinary hearing you would be able to claim automatic unfair dismissal. This is the case even if your length of service is less than one year.

  Q: I think that my employer is not following the correct procedure for a grievance that I have raised. Can you tell me the basic rules?

  A:You have already lodged a grievance. Hopefully this has been done in writing and has set out the nature of your grievance. When your employer received your grievance they should have arranged for a formal meeting to have been held without unreasonable delay. Both you and your employer should have made every effort to attend the meeting. You should have been allowed to explain your grievance and to suggest how it could be resolved. If it was necessary to investigate any matter then the hearing should have been adjourned. You should have been given the right to be accompanied at the meeting such that your chosen companion may be a fellow worker, a trade union representative or an official employed by a trade union. To exercise the right to be accompanied you must first have made a reasonable request. Following the meeting your employer should have decided on what action, if any, to take. They should thereafter have communicated their decision to you in writing without unreasonable delay and should have set out the action that they intend to take to resolve the grievance. They should have informed you of your right of appeal and if you did appeal this should have been done without unreasonable delay and in writing. Your appeal should have been heard without unreasonable delay at a time and place which should have been notified to you in advance. The appeal should have been dealt with impartially and where at all possible by a manager who has not been previously involved in the case. You should have had the right to be accompanied at the appeal hearing. Your employer should have thereafter advised you of the outcome of the appeal without unreasonable delay.

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  Personal Injury

  Q: How long will the claim take?

  A:This is very difficult to say because it would depend on your recovery from your injury and prognosis given by your medical expert. The level of damages you are awarded can only be assessed once your injury has stabilised. In the majority of cases, however, proceedings must be commenced within three years of the accident.

  Q: What if my injury occurred a while ago?
  A: The time limits in accident claims are very strict. You must start Court Proceedings within 3 years of the accident (this is different for children). It is therefore very important to get legal advice as soon as possible after your accident.
  
  Q: What if my injury occurred a while ago?
  A: The time limits in accident claims are very strict. You must start Court Proceedings within 3 years of the accident (this is different for children). It is therefore very important to get legal advice as soon as possible after your accident.
  
  Q: I am not sure if I have a genuine claim?
  A: It is important to get expert advice as soon as possible to have your claim assessed. Many solicitors, including Curwens, offer a free initial interview.
  
  Q: Will my case really cost me nothing?
  A: Once your case is assessed and accepted, unless you have legal expense insurance, it will be taken on a “No Win, No Fee basis” more correctly known as “Conditional Fee Agreement” where the legal costs are claimed from the losing party to the case, more often than not, the insurers for the defendant.
  
  Q: Is there a penalty if I withdraw early?
  If you withdraw your claim for no good reason, you will have to pay the solicitors basic costs.
  
  A: Will I have to attend a medical?
  Yes – your case cannot be properly assessed without expert medical evidence to assist the judge about the prognosis of your injury.
  
  Q: How much compensation could I expect?
  Solicitors follow guidelines and scales of awards as set out by the Judicial Studies Board, combined with references to previous decided cases similar to yours. We will settle as appropriate but if it is not possible to settle satisfactorily by negotiation, your case will have to proceed to Court and the Judge will decide the level of compensation (“damages”) at the trial.

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  Road Traffic

  Q: I have received a summons for a road traffic offence, is it worth having a solicitor?
  A: It really depends on the circumstances. Please refer to our guide to driving offences which answers this question. It is certainly worth getting free preliminary advice by telephone.
  
  
  Q: Does a drink drive offence always involve disqualification even if I drive for a living?
  A: Unfortunately, usually yes. However, it is worth getting advice to see whether there is, in fact, any defence to the charge and equally importantly, if there is anything which can be done to minimise the period of disqualification.
  
  Q: I have received a summons but did not get a Notice of Intended Prosecution. Can I ignore it?
  A: Notices of Intended Prosecution are not required where a motorist is aware of a possible prosecution. For example there has been an accident or you have been stopped for some offence and spoken to by a police officer. You must not ignore the summons and we would suggest that you should contact a solicitor promptly, in order to obtain specific advice as to how to respond to the summons.
  
  Q: I was over the limit for driving although I had only had two drinks all night. How can this be?
  A: What counts is the actual level of alcohol in the breath test or urine or blood test, if applicable, irrespective of the quantity of drink consumed.
  
  Q: I have been disqualified for three years and two years has passed. Can I apply for my licence back?
  A: Yes, you can and an application to the Court is required.
  
  Q: I am not sure what my plea should be. Can you help me?
  A: Yes, once we understand the circumstances of the case, we can advise you on your choices. There is a credit to be given by the Court for a plea of guilty but there are situations where it is necessary to plead not guilty and thus to obtain voluntary disclosure of the prosecution evidence before deciding this question. Your solicitor will advise you which option is more suitable in your case.

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  Careers - Trainees

  Q: What are the prospects of being retained post-qualification?

  A: Curwens has an excellent track record of keeping newly qualified lawyers. After all, if we have invested in you and taught you the Curwens way of doing things, it does seem sensible to benefit from that investment! Several Assistant Solicitors, Associates and even a current Partner have ‘come through the ranks’. It is of course up to each Trainee to take the opportunities offered, but we will do our best to support your career development.

  Q: How much influence do I have over the seats I take during my training contract?

  A: Our largest departments are Litigation (including PI, property and contract disputes) and Employment and hence every Trainee can expect to undertake a seat in these areas. In addition Trainees often take seats in Family, Private Client and Company & Commercial. The actual mix and timing of these and other possible seats is decided following discussion with individual Trainees.

  Q: I understand that you receive very high numbers of applications so what can I do to make increase my chances of being interviewed?

  A:Our advice to you is much as you would receive elsewhere. Keep your application brief, up to date and highly relevant. High academic standards are just one filter, so don’t assume a first class honours degree or 2:1 together with high scores at LPC, will automatically get you an interview. We like to see interesting and enthusiastic people who can contribute positively from day one. Their foresight in gaining relevant experience and knowledge outside their formal training tells us a lot about how they will approach the rest of their career. In addition, useful life experiences outside the profession can add significantly to a person’s attractiveness at application.

• Above all (we repeat ourselves with good reason): be brief, up to date, with no gaps, and be relevant to the training position for which you are applying.

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