On Friday 11th December our team had fun taking part in the Christmas Jumper Day for Save the Children Fund. Members of staff from every office took part and we managed to raise over £300 for the charity. Thank you to our Head of Accounts, Libby Sarsfield for organising. Hats off to Stephen Carr from our Dorking office for appearing in full Elf outfit! Here are some photos from the day.
What is an Executor?
An Executor is the person responsible for administering the estate of someone who has died leaving a valid Will. This article focuses on there being a valid Will with Executors who are able and willing to act in the administration.
If there is no will, or those named are unable or unwilling to act, an Administrator (usually one the beneficiaries under the Will) shall need to be appointed to administer the estate. An administrator’s obligations are similar to those of an Executor. For further information on Administrators and/or the Intestacy Rules, please see our October edition article, ‘my role as an Administrator’ for further information.
Who can act as an Executor?
A person can act as an executor if they are appointed in the Will of the Deceased, provided that :-
1. They are at least 18 years of age; and
2. They have full mental capacity (they should inform their acting Solicitor if they have received a diagnosis which might affect their capacity for example, a dementia diagnosis etc); and
3. They are not bankrupt nor in the process of being made bankrupt; and/or
4. They are a professional (such as a Solicitor or Accountant).
A beneficiary under the Will may be an Executor.
Grant of Probate
While the power of an Executor emanates from the Will, most organisations will not recognise the Executorship until the Probate Registry has issued a Grant of Probate. This document gives the Executor the authority to administer the deceased person’s estate.
On the 2nd November 2020, new rules came into force which required applications for the Grant of Probate to be submitted online. HMCTS has recently extended its grace period to allow paper applications to be accepted until the 11th January 2021.
How many people can act as an Executor?
1. The deceased can appoint up to four Executors; and
2. All decisions should then be made jointly by the Executors.
Can the Executor renounce their Executorship?
A names Executor is not legally obliged to take up the Executorship. As long as the Executor has not become too embroiled in the Administration of the estate (“intermeddling”), they will be able to renounce their Executorship through a “Deed of Renunciation.”
What is my role as an Executor?
Once the Executor has agreed to accept their role as Executor, they will have a responsibility to the beneficiaries to ensure that the Estate is administered properly. This means establishing
the value of the Estate, paying any debts, including tax, and distributing the estate to the beneficiaries in accordance with the Will. The law requires this to be done with due diligence.
Often, the Executor will appoint a Probate Solicitor to assist them with the administration.
The administrative tasks may include:
• Registering the death;
• Ensuring that there is no later Will than that which you are propounding;
• Opening an Executor’s bank account;
• Making funeral arrangements;
• Identifying the beneficiaries;
• Establishing the value of the deceased’s assets;
• Ensuring that there is adequate insurance in place for the deceased’s properties;
• Preparing a Schedule of Assets and Liabilities;
• Assessing the Inheritance Tax position and arranging for the payment of the tax;
• Completing the necessary Inheritance Tax Account;
• Preparing an application for a Grant of Probate;
• Calling in the assets upon receipt of the Grant;
• Selling assets, if necessary, to realise cash for the purposes of the administration;
• Distributing the estate to the beneficiaries;
• Transferring the assets to those entitled; and
• Preparing Estate Accounts
Does the Executor need to take out home insurance for the deceased’s residential property?
The Executor can be personally liable if there is any damage caused to the deceased’s residential property and they have failed to take out adequate insurance.
An Executor should contact a home insurance provider to :-
• Make sure that the deceased has taken out valid home insurance;
• Ensure that the home insurance was not invalidated upon the deceased’s death; and
• Take out home insurance if there is currently no home insurance in place or if the home insurance has become invalid.
If the deceased was paying home insurance, it is strongly advised that the Executor continues to make these payment (keeping receipts in order to reclaim the money from the estate).
When can the Executor sell the deceased’s property?
Any major assets in the deceased’s sole name (such as a residential property) cannot be sold until a Grant of Probate has been obtained.
Can the Executor sell the property under market value?
The Executor you must ensure that any property is sold for full market value. If the Executor fails to achieve market value for an asset, they risk exposing themselves personally to a claim from the beneficiaries if they have failed to achieve the ‘best price’.
To establish what the ‘best price’ or current market value is, it is advisable that the Executor instructs three estate agents to provide three independent property valuations. Alternatively, or in addition, the Executor may wish to instruct a surveyor to provide a property valuation.
It may be advisable for the Executor to consult the beneficiaries before selling an asset to ensure that they are satisfied with the price. Technically, the Executor does not have to consult with the beneficiaries however, it is advisable that they notify them.
There is a practical advantage to consulting with the beneficiaries as this can avoid a claim later on that the Executor sold the property for less than its market value.
Can the Executor be liable to the beneficiaries and creditors for any unpaid debt?
Executors who have distributed assets of the deceased are personally liable to any beneficiaries or creditors for any unpaid debts and liabilities even though they may not have been aware of them at the time of distribution. In order to protect themselves, they can advertise for creditors by giving notice of their intention to distribute assets, requiring any creditor to send in particulars of their claim within the stated time (not being less than 2 months from the notice date). The notice must be placed in the London Gazette and paper local to where the deceased lived.
Can the Executor charge for the work they carry out as an Executor?
An Executor is unable to charge for their work as an Executor (save for reasonable estate expenses) unless they are acting as an Executor in their capacity as a professional.
Can the Executor claim back their Executor expenses?
The Trustee Act permits the Executor to reclaim their out of pocket expenses, i.e. those sums that they expend in discharging their duties as a Trustee. The Executor should ensure that they keep all their receipts and present them to their acting Solicitor who will factor in these reasonable disbursements when prepare the Estate Accounts.
Should you have any queries and/or wish to seek guidance to ensure that you are acting in line with your fiduciary duties, then please do not hesitate to contact Kathryn McCullough (Our Private Client Solicitor) at kathryn@meaby.co.uk
This article is intended for general purposes only and does not constitute legal and/or professional advice. Please seek legal advice before proceeding with your matter.
Since Covid-19, local authorities have been experiencing delays in producing local authority searches. With the stamp duty holiday ending on 31 March 2021, any delays in transactions have been producing anxiety for clients who wish to buy before the end of the stamp duty holiday.
Since Covid-19, Hackney Council have been experiencing significant delays in producing local authority searches. After Covid-19 struck, their turnaround times increased and ended up being approximately two months. Then the Council experienced a Cyber attack which has meant that for some time, their systems have been down while they deal with the after effects of the Cyber attack and during this time have not been able to produce any local authority searches. Even regulated local authority searches (which is where a search agent attends the local authority’s offices in order to carry out a search themselves) are not being produced as their offices are closed to search agents during this time. Whilst their offices have been closed, the Council have been unable to provide any further estimated turnaround times as they need to deal with the situation, then assess the backlog before giving any accurate turnaround times.
Whilst Hackney’s systems are still closed the Council have now given an estimated turnaround time for local authority searches. They have given an estimated turnaround time of 171 working days. This means that any local authority searches which are now ordered will not be available before the stamp duty holiday deadline of 31 March 2021. Local authority searches are an essential document in conveyancing transactions. It answers numerous questions and provides a large amount of information from the Council’s records. It gives details of local land charges such as financial charges registered against the property, planning designations, information regarding planning and building regulations for the property, information regarding any orders noted against the property such as compulsory purchase orders or tree preservation orders, traffic and transport schemes, etc. Normally you need to receive the local authority search before you can exchange contracts as it contains such useful information and a search could reveal adverse entries. It is also usually a lender’s requirement.
An alternative to proceeding to exchange of contracts without a local authority search could be search insurance. There are two options. One is search insurance which is an indemnity policy where a local authority search is not ordered. The second option (which is a bit cheaper) is search delay insurance which is where you take out the indemnity policy where you have already ordered the local authority search and wish to proceed before the results are received. The second option is probably better than the first as sometime down the line when the search arrives you will find out what the search contains rather than having to potentially deal with an issue later down the line such as when you come to sell.
Search insurance is a legal indemnity policy which covers a buyer and their lender for costs in the event that it is later revealed that the local authority search would have revealed adverse entries. Costs can include costs of dealing with and removing an adverse entry and can also cover loss in value of the property due to an adverse entry.
We usually advise waiting until a local authority search arrives as it is much preferable to have all the information at hand before you commit yourself to exchange of contracts. If the local authority search does arrive before exchange, then you can ask the seller’s solicitors to provide any appropriate documentation or further information and you can ask the sellers solicitors to deal with any adverse entries. For example, if there are any charges registered against the property such as a Community Infrastructure Levy liability notice or a home improvement grant, you can require the sellers solicitors to pay off the charges. If the adverse entries are significant, then you can make an informed decision on whether to proceed or pull out or ask for a price reduction. It is normally better to deal with such entries before you commit to exchange of contracts rather than try to deal with them after you become the owner of the property and to deal with an insurer. However, with Hackney Council’s backlog for local authority searches being delayed for approximately half a year and due to the stamp duty holiday deadline, search insurance would appear to be the only option in order to purchase a property in the London Borough of Hackney before the stamp duty holiday deadline or to buy a property in the London Borough of Hackney for in the near future.
A potential issue with proceeding with search insurance is that a lot of lenders do not accept search insurance in connection with a purchase. They are more likely to accept search insurance for a remortgage where the borrower already owns the property. There are, however, a few lenders who do accept search insurance for searches. If you are considering buying a property in the London Borough of Hackney and wish to take out search insurance in order to proceed before the end of the stamp duty holiday deadline, then it would be worth speaking to your mortgage broker in order to identify particular lenders who will accept search insurance. It is also worth checking Part 2 of the UK Finance Mortgage Lenders handbook for conveyancers which is available online. Below is a link to the particular question which asks if the lender accepts search insurance and the answers are listed by lender:
https://lendershandbook.ukfinance.org.uk/lenders-handbook/englandandwales/question-list/2081/
If you have any property-related legal questions please do not hesitate to contact us for a no-obligation chat on 0207 7035034 or email us at info@meaby.co.uk.
Find out more on how we can help you in our Property Section.
There are three circumstances where the right to manage comes to an end:
However, the third point must be monitored closely.
It is clear that once a company has been struck off the Company Register the right to manage is no longer exercisable. If this happens, the management functions previously carried out by the RTM Company revert to the Landlord. However, when a company is restored to the register, either by order of court or by the administrative restoration process, the company is deemed never to have been struck off in the first place and the RTM rights are automatically reinstated. This was confirmed in the decision of the First Tier Tribunal in AB&R RTM Co Ltd v Rovergrange Ltd (unreported).
A recent consultation proposed that the principle in AB&R RTM Co Ltd v Rovergrange Ltd (12th April 2017) to restore the company to the register should have to be made within 30 days of the strike off taking effect. However, we are not aware of that law being implemented yet.
If you would like to discuss any stage of the RTM procedure please contact the Beth Rose: brose@meaby.co.uk or call 0207 703 5034. |
Prior to the lockdown, only a small proportion of family mediators offered family mediation via Zoom or other video conferencing platforms. As a result of the lockdown many more family mediators, including our Head of Family Law, Joanna Toloczko are now offering the service, given that many couples wish to progress the arrangements for their separation and divorce but face to face meetings are not possible. But how does remote family mediation work?
Joanna’s favoured platform is Zoom. In order to take part in a mediation conducted via Zoom, all a client has to do is download the Zoom app on their device. Joanna will schedule the meeting and send the client a link. The client then clicks on the link at the beginning of the meeting and it is as simple as that.
Mediation Information and Assessment Meetings are conducted individually and the only form required is the Family Mediation Preliminary Information form. Joanna will arrange for you to complete and submit the form prior to the MIAM.
As far as the joint sessions are concerned, if it is a financial mediation, there can often be a large number of documents to be shared. Joanna will manage this by sharing her screen with the clients so that Joanna and the clients all see the same document at the same time, whilst remaining “present” in the meeting. Zoom has a whiteboard function which can be used in place of the flipchart which would be used in a face to face mediation.
At the beginning of joint mediation sessions, Joanna will activate the waiting room function so that both clients enter the meeting at the same time and there cannot be any perception that either of them has been having a cosy chat with Joanna prior to the meeting.
Joanna will ask each party to confirm that they have no one else in the room with them; they cannot be overheard (particularly by children) and they are not recording the session.
Zoom also has a mute function which Joanna is able to use should one party become abusive or aggressive. There is also a breakout room function in case Joanna needs to speak to the clients separately.
Joanna has found that the remote sessions work just as effectively as the face to face sessions. Indeed, there are some advantages to the remote sessions as follows:-
If you would like further information regarding remote family mediation please contact Joanna on her direct line 0203 861 5155 or at jtoloczko@meaby.co.uk.
Coming to see a solicitor to be a daunting experience for many and so clients often like to bring with them friends or family members for support. In some areas of law this does not pose a problem.
When it comes to Wills and Lasting Powers of Attorney the situation is different. For solicitors who deal with Wills and Lasting Powers of Attorney (LPAs), it is vital that when taking instructions from the client, on what they would like their Will or LPA to contain, that the client is not being put under any pressure from anyone else. This is sometimes known as undue influence and it can be seen as those around the Will or LPA maker using influence or pressure on them to create their Wills or LPAs in a certain way.
When taking instructions for a Will or LPA we will see the client who is making either of those documents on their own without their friends or family present. This ensures that the solicitor is able to speak openly with their client and the client is free to raise any concerns they may have which they may not have felt they were able to speak about in front of family members or friends. By seeing clients without others present, we are seeking to protect the interests of our clients and ensure that their wishes and instructions are their own.
Undue influence can come in many forms:
How this can affect Wills and LPAs? Due to undue influence the client creating the Will may feel they have to leave their estate in a particular way, for example:
June has two children Katie and Stephanie. June brings her daughter Katie to her Will appointment. Katie comments numerous times during the meeting that she is struggling financially.
June tells the solicitor that she wishes to divide her estate 70% to Katie to 30% to Stephanie because Katie needs it more.
There is no problem with June doing this by her Will, however, with Katie present in the appointment it is more difficult to ascertain whether this is how June truly wants to divide her estate or whether she feels she must because Katie is present at the appointment and has made it clear that she is in a financially worse position.
If Katie was not present at the appointment then the solicitor would be able to ask June why she is making the decision to split her estate unequally between her two daughters and whether this is what she wants to do. If the solicitor does not see June on her own and Stephanie challenges the Will then the solicitors will find it difficult to confirm that June’s instructions were given without undue pressure.
Another example could be undue influence between married couples. One of the spouses could be more dominant within the marriage regarding making decisions and imposing their views upon their spouse. The more dominant spouse may wish to for them to both leave their estate by their Wills in a particular way and the other does not feel like they can contradict what their spouse says. We also advise seeing married couples separately to ensure that their wishes are their own. Although they are a married couple the solicitor must act in the best interests of each of them as individuals.
When it comes to LPAs the undue influence can come in the form of a friend or family member or another person pressuring the person making the LPA to appoint them as their attorney. For example:
Anthony has a son Luke who is pressuring him to make an LPA for Property and Finance so that Luke can access his bank accounts and have control over his property. Anthony does not want Luke to have sole control over his assets, but he does not feel he can contradict him. If Luke were to come to the appointment with Anthony, then Anthony may not be able to speak to the solicitor openly about his concerns with having just Luke in control of his finances. If the solicitor were to see Anthony alone, these concerns could be discussed, and Anthony may decide to appoint Luke alongside another attorney so that he is not acting alone.
Whether making a Will of LPA, we as solicitors must ensure that we are creating those documents based on the wishes of our client and not what other people think our client should do. This protects our clients both now and the future to prevent any challenges to the Will or LPA by way of undue influence.
If you wish to have a Will or LPA drafted, we are here to help. Please contact Esther Janalli-Brown on 01306 884432 or email ejbrown@meaby.co.uk for more information.
This article is aimed at solicitors who refer clients to our family mediator, Joanna Toloczko. It is intended to provide you with guidance on how to give your client the best possible support throughout the mediation process and maximise the prospects of a successful outcome.
The mediation referral
The referral process progresses most efficiently if you make the referral for your client. This can be done using Joanna’s referral form, which only takes a few minutes to complete. We need very little information to get matters under way. This is much better than just giving the client Joanna’s contact details or a link to our website. Clients often delay making contact and this leads to their case losing momentum.
Help with the Form E
If your client has already completed a Form E, please ensure that they have a copy of the Form E and the supporting documents to give to Joanna. This will save time when we are dealing with disclosure. If they haven’t completed a Form E yet, don’t worry, your client will be provided with guidance on the completion of the form as part of the mediation process.
Providing timely advice throughout the mediation
As the mediator is not able to provide advice to either party as this would prejudice her impartiality, there are likely to be several occasions when your client will need advice in support of the mediation process. The most significant of these is when the agreed schedule of assets, income and liabilities is ready. If your client has not previously had advice regarding the range of likely outcomes, now would be a very good time to provide them with that advice. Joanna will prepare the schedule in such a way that you can see at a glance what assets there are and the value of those assets. Comprehensive and constructive advice at this stage helps to manage expectations and leads to successful outcomes.
It is important to stress to your clients that there is not just one “right” outcome. It is very frustrating when a client comes to mediation clutching a calculation from their solicitor and will not budge from following that calculation to the exact pound.
Whenever a client feels that they would like to have an opportunity to consult their solicitor, Joanna will always give them time for this. Clients are always going to be more committed to proposals that were approached in a relaxed and comfortable way and supported by legal advice.
Have faith in the mediator
Help your client to select a mediator you know and trust and then have faith in the mediator. Clients may sometimes query, for example, why the other person was permitted to speak for longer than they were or why the mediation is progressing slowly (in their eyes). The mediator will usually have a very good reason for conducting the mediation session in the way they did. For example, the mediator may have detected that the discussions are only going to be fruitful if an angry or hurt client has an opportunity to vent first or the party who has not dealt with the couple’s finances is permitted an opportunity to “catch up” and understand the financial arrangements.
A Disclosure and Barring Service (DBS) check is a mandatory process designed to find out whether an individual has a criminal record. The aim of the system is to perform a balancing act between safeguarding the public and ensuring that the rehabilitation of offenders is not hindered.
These were originally known as Criminal Record Bureau (CBR) checks which were introduced by the Home Office in 2002. These checks were aimed at protecting children and vulnerable adults from gaining close contact with people that could harm them.
The switch to what is now commonly known as DBS happened when the independent Safeguarding Authority merged with the Criminal Records Bureau in 2012. This was in turn triggered by the response to the brutal murders of Holly Wells and Jessica Chapman at the hands of Ian Huntley which attracted a lot of media publicity at the time.
The system was amended in 2013 by the Police Act 1997 to allow for the filtering of single convictions after 11 years (or five years and six months if the person was a minor at the time of committing the offence) , and for non-violent, non-sexual offences that did not lead to a custodial or suspended sentence.
Today, DBS checks are an essential part of the screening process for many jobs, and while there are no official statistics available, it is thought that the system has prevented many people who are unsuitable for sensitive roles, from filling such positions – where they would otherwise have come into contact with children or vulnerable people.
There are obvious professions that require DBS checks for example teachers, doctors and nurses and care assistants. There are also some bizarre professions that also require such checks including scrap metal dealers, chartered accountants, pest control officers (who may need to enter schools or nursing homes), traffic wardens, locksmiths and Bar Supervisors (who need a personal licence to see alcohol)
There are also different levels of DBS.
Basic Disclosure
This can be requested by an individual and anybody can obtain one. Employers for example can request a basic disclosure if they want some background information on someone. This can cover any recent or serious unspent convictions. It can also be used for those who require personal licence applications, to obtain visas or if you are an infrequent volunteer at a school.
Standard Disclosure
A standard DBS check will reveal spent and unspent convictions, cautions, warnings or reprimands on an individual’s record. In order to apply for a standard DBS check the applicant’s job title must be included in the Rehabilitation of Offenders Act 1974. These job titles can for example include Accountants and Lawyers, Court and prison staff and Veterinary surgeons.
Enhanced DBS Checks
These more thorough checks are required for anyone who will be required to work with children or vulnerable adults. It can also include other professions as set out in the Rehabilitation of Offenders Act 1974 and the Police Act 1997.
These enhanced checks can include a barred list which cross checks a list of people barred from working with children or vulnerable adults.
The costs associated with these checks are £26 for a standard check, and £44 for both and enhanced check and a barred list check.
Usually it is the employer who pays for these costs. In addition you can pay an annual fee of £13 which will assist those who regularly switch jobs for example working as bank staff in a series of care homes. This saves them time and money in having to pay for DBS checks every time they work for a new employer or are placed by an agency and can be used multiple times.
DBS certificates are issued to individual employees (even though the application may have been made by the employer) and who are able to challenge any incorrect information and spent convictions that may have been disclosed.
The time frame for completing DBS checks is generally between four and eight weeks. It is also quite common however, for some checks to take a lot longer to process especially if the person being checked has moved around a lot. It is always better to use the services of a trusted DBS outfit who can hopefully speed up the process.
There are 5 stages to a DBS check set out as follow|:-
Imminent changes
The Disclosure and Barring Service has announced that the filtering rules for Standard and Enhanced checks are changing from 28th November 2020. This follows a Supreme Court ruling earlier this year that decided that the existing DBS rules were disproportionate and did not afford certain individuals the opportunity to rehabilitate. These changes are also designed to ensure that minor discretions do not continue to have a disproportionate effect on the working lives of those who are effected by them. (R (P& Others) v Secretary of State of the Home Department & Another)
The main changes that are being implemented are that the DBS will no longer disclose youth reprimands, youth warnings or youth cautions. The multiple convictions rule will also be removed meaning that convictions will also no longer be automatically disclosed where an individual has more than one conviction. This means that each conviction will be considered against the remaining rules individually as opposed to being automatically being disclosed on the certificate.
It is recommended that employers update their current recruitment practices and policies to reflect these changes. It is also recommended that the following statement should be set out in standard job application forms. ‘The amendments to the Rehabilitation of Offenders Act 1974(Exceptions) Order 1975 (2013 and 2020) provides that when applying for certain jobs and activities, certain convictions and cautions are considered ‘protected’. This means that they do not need to be disclosed to employers, and if they are disclosed, employers cannot take them into account.’
If you have any concerns about the DBS system and the processes that are involved then contact Steven Eckett, Partner and Head of Employment at Meaby & Co LLP 020 7703 5034 or seckett@meaby.co.uk
All employees have what are termed “Day 1 rights”, which are those which protect the employee and require no qualifying period of employment. Examples of these are, amongst others, the right not to be discriminated against or harassed. These serve to protect an employee, or prospective employee, from such unwanted conduct.
There are other rights an employee has, but which require that they have a continuous period of employment to qualify. The most common example is the right to make an Unfair Dismissal claim to the Employment Tribunal (“ET”), which relates to the manner and reason for dismissal. This currently requires that an employee has a minimum of 2 years’ employment with their employer to do so. The scope of this note relates to “ordinary” Unfair Dismissal claims, and does not address the issue of “automatic” Unfair Dismissal claims, for which statute has prescribed 7 circumstances in which such a claim may be made. Examples of automatic Unfair Dismissal are the right not to be dismissed for whistleblowing or for being pregnant or on maternity leave. These are also “Day 1 rights”.
Currently, because of the 2 year rule, the law effectively allows an employer to dismiss an employee unfairly if the employee does not have such a qualifying period, as the employee has no recourse to the ET to dispute the dismissal or seek remedy. Accordingly, an employer is protected from such claims, but practically, how should it handle a dismissal in circumstances in which the employee has no remedy?
Legally, an employer does not need to provide a reason for dismissal to an employee who does not have the 2 years’ employment unless they are pregnant or on statutory maternity or adoption leave. However, it would be expected that an employee would want to know the reason for their dismissal, and it may appear callous not to provide one. Practically, not providing one might encourage the dismissed employee to make a claim for which they do not require a qualifying period, such as discrimination, regardless of the merit of such a claim. As costs are rarely awarded to either the winning or losing party in an ET, defending the claim will cost the employer time, uncertainty and money, all of which it would prefer to avoid.
Of course, the most appropriate solution is to provide the employee with the factual reason for dismissal, but there are circumstances in which an employer might be reluctant to do so.
If the employee is to be dismissed for redundancy, and the reason is genuine, it is generally relatively easy for an employer to show the employee that their role is no longer required, as it is usually a reflection of the financial or market position of the employer. Although any dismissal is rarely welcomed by an employee, at least a dismissal for this reason often comes without the stigma of “incompetence”.
But what should an employer do if it wishes to dismiss an employee with less than 2 years’ employment for “performance” reasons? It is entitled to do so. It is protected from any Unfair Dismissal claim in relation to that. It may be tempting for an employer to either provide no reason to the employee, or, if the personal relationship between the parties is warm, seek to categorise it as “redundancy” in an effort to avoid the feeling of hurt which a dismissal for “performance” often brings to the dismissed. By softening the blow, it is likely that this will reduce the possibility that another, Day 1 claim, is made against the employer.
A word of warning to employers. While the possibility of another, Day 1 claim being made by the dismissed employee is reduced in those circumstances, if one is subsequently made and it becomes clear in the ET hearing that the real reason for dismissal was not “redundancy”, it will show that the employer misrepresented the real reason for dismissal. It then becomes easier for an ET to accept the claimant’s argument that dismissal was for another reason – which may make the unmeritorious Day 1 claim more likely to succeed.
The answer to the question of “which reason should an employer give to a dismissed employee with less than 2 years’ service?” is not a “one size fits all”. An employer will take a view on the likelihood of a claim being made against it, and will also no doubt be informed by the relationship with the soon-to-be-dismissed employee. But it is worth bearing in mind the possibility that if it does try to “let the employee down gently”, it may have to defend a non-credible reason for dismissal in the ET, which increases the prospect of the Day 1 claim against it being successful.
Meaby & Co are lawyers experienced in all aspects of employment issues. Should you require advice on any aspect of employment law, including the above, please contact Chris Marshall on 0207 703 5034 or 07866 453679.
The current stamp duty holiday during which no stamp duty is payable on the first £500,000 of the purchase price is due to end on 31st March 2021.
We have seen a number of news articles recently regarding the stamp duty holiday coming to an end and the risk that many prospective purchases, including those who have recently had offers accepted, may well fail to complete by 31st March and not benefit from the stamp duty holiday.
One such article which was featured on the Estate Agent Today website on 9th November quoted a national conveyancing firm as saying “anyone ringing us will be quoted with SDLT at the normal rate, so that will set it out from the start that the likelihood is that they won’t be completing by 31 March.” The article goes on to note that “Three weeks ago three conveyancing groups – The Society of Licensed Conveyancers, the Bold Legal Group, and The Conveyancing Association – warned in a statement: “The message that conveyancers would like clients and their estate agents to take on board is – understand that transactions are going to take longer than usual to progress and please be patient. Continually chasing your lawyer actually makes them less productive and indirectly is a further cause of delay in the process.”
There is no denying that the property market is busier than it has been for a very long time and this will inevitably lead to delays especially where a chain is involved. It seems to be taking longer than ever for mortgage offers to be issued and local authorities, many of whom are working under added strain due to the current pandemic, are experiencing significant backlogs in processing applications for searches and providing results.
Despite the pressures we are all under, we are not going to adopt a somewhat defeatist attitude and tell new clients that we best quote on the basis that they will miss out on the stamp duty holiday. We will continue to do all we can to progress matters as quickly as possible our end to minimise the impact of the current delays. There are, however, many factors which are entirely outside of our control and we would therefore recommend that anybody who wishes to purchase within the stamp duty holiday period finds a property and instructs a solicitor without delay.
If you have any queries regarding any aspect of residential conveyancing, please contact Stephen Carr on 01306 884432 or email scarr@meaby.co.uk