Employees; does your settlement agreement protect your interests?
If you have been offered a settlement agreement from your employer you need to act quickly to ensure your rights are protected; this will involve seeking the advice of a lawyer.
The good news is that employers will often contribute towards the legal costs of seeking advice on the terms and effect of the settlement. In most circumstances, this fee will cover advising on the agreement as well as advice on your claims, so you can consider the reasonableness of the offer on the table.
What is a settlement agreement?
A settlement agreement is a legally binding contract between you and your employer which settles any current claims and/or prevents you from pursuing any claims in the future. It normally involves financial compensation being paid to you in consideration for you agreeing not to pursue any claims you may have.
Tip: the first thing you should check is whether the offer contains any additional payments over and above what you would be legally entitled to in any event. You are signing away all rights and you should be compensated for this over and above any payments you are legally entitled to. Such compensation may be minimal but why sign a contract unless you get some benefit from it.
In order for a settlement agreement to be legally binding the following applies:
- It must be in writing;
- It must relate to a particular ‘complaint’ or ‘proceedings’;
- The employee has to receive independent legal advice on the terms and effect of the agreement;
- The legal adviser must have insurance in place to cover the advice given;
- The adviser must be identified in the agreement;
- The agreement must state that the conditions regulating settlement agreements under the relevant statutory provisions have been satisfied.
Tip: one of the legal requirements is that you have received independent legal advice. The sooner you instruct a solicitor to represent you the more time they will have to give you proper advice. Further, employers often put time limits on offers; the more time your solicitor has to amend the agreement the more likely your interests will be protected.
Whilst the employer’s contribution does not cover the legal costs to negotiate on the settlement monies, the sooner you meet with your solicitor, the sooner you will be able to get advice on your potential claims. To give you the best possible chance of reaching a better settlement you need to understand your potential claims early on.
Tip: if your solicitor advises the settlement monies are not reasonable you can instruct them to help you negotiate a better deal, contact the employer direct to negotiate a higher sum or accept the sum being offered.
Terms that may leave you unprotected
- Many employers will agree to provide a standard reference. However, they often reserve the right to amend it should new facts come to light without letting you know. What if this new reference is sent to a prospective employer?
- All settlement agreements contain a clause stating whilst the settlement is offered tax free, you agree to pay any tax that may be due. Often the clause goes on to say you will be liable for any fines, penalties, interest that may also become due. What if the employer fails to notify you of a tax demand? Any penalty will be as a result of their failure so why should you be liable for this?
- An employer will not want you to discuss the agreement, as it may encourage other employees to seek a settlement in circumstances they are not entitled. It may also want you to keep the circumstances surrounding your termination confidential. What will you say to a prospective employer if you are subject to confidentiality?
Tip: whilst many solicitors offer a service advising on settlement agreements, you need a specialist employment lawyer on your side, who not only advises on the terms but who actively seeks to protect your position by negotiating on the terms of the agreement. For example, our expert dental lawyers UK offer specialist advice tailored to the complex legal landscape of the dental industry.
If you have a settlement agreement that you need advice on, please contact us on 020 7388 1658 to speak to one of our expert solicitors. If you complete our online form, one of our team will be happy to call you back.
Tribunal Fees. What will I have to pay?
Tribunal Fees no longer applied. For further information reed Employment Tribunals; fee reimbursement scheme.
If you need advice regarding Tribunal Fees then call us on 020 7388 1658 to speak to one of our specialist lawyers. If you complete our online form, one of our team will be happy to call you back.
I won my claim, but my employer has not paid the award. What can I do?
If you won your claim but your employer has not paid the award, then you can take enforcement action in the County Court or in the High Court. Which court and the appropriate process will depend upon the type of award or settlement you received.
If your employer is insolvent then certain debts can be claimed from the National Insurance Fund, including statutory redundancy pay and the basic award, and statutory notice pay.
If you need help to enforce an award then call us and speak to one of our expert solicitors. If you complete our online form, one of our team will be happy to call you back.
How much are employment tribunal awards?
The level of employment tribunal awards you can expect if you win depends on the type of claim:
You can expect both a basic award and compensatory award.
The basic award is calculated on the basis of age, the number of years’ continuous service with the employer (up to maximum of 20), and gross weekly salary, which is currently capped at £464 but will rise to £475 on 6th April 2015. The maximum basic award is therefore £13,920 at present; as of 6th April, the maximum basic award available will be £14,250.
The compensatory award is a calculation of loss of earnings up to the date of the tribunal, and future loss, if applicable. It can also include expenses, for example, the costs involved in seeking work such as travel fares to interviews, and an amount for loss of statutory rights. The maximum compensatory award is currently £76,754, (£78,335 from 6th April 2015) OR 52 weeks’ pay, whichever is lower (in unfair dismissal claims the first £30,000 is tax free).
A tribunal can adjust the compensatory award by up to 25% for failure to comply with ACAS procedures; deductions can also be made for contributory fault on the part of the employee.
You will also be able to claim an award for ‘injury to feelings.’
If you are claiming discrimination where there is not a dismissal, then you will be able to claim for any loss of earnings, such as a reduction in hours, a demotion, or loss of promotion, as a result of the discrimination.
In each case the employment tribunal will require a claimant to prepare a ‘schedule of loss’, which sets out in detail the amount of compensation sought.
If you need advice on the level of employment tribunal awards you can expect, help drafting a schedule of loss, or you are an employer who wishes to contest an employee’s schedule, then call us on 0207 388 1658 to speak to one of our expert solicitors. If you complete our online form, one of our team will be happy to call you back.
Can I get help with legal costs?
JFH Law act for employers and employees on a privately funded basis. Call us on 020 7388 1658 to discuss our rates as leading employment and dental lawyers UK. If you complete our online form, one of our team will be happy to call you back.
JFH Law are committed to providing high quality affordable legal representation. In appropriate cases we may be able to agree a fixed fee, and for businesses we offer Business Support Packages which include discounted rates for representation.
Employee funding options
If you are a claimant, then you may be able to get help with your legal costs from a private insurance policy, such as your household insurance, or a trade union.
Under the terms of your insurance policy your insurer will suggest that you should use one of their ‘panel’ of solicitors, but they must tell you that you are free to instruct the solicitor of your choice. If you are not sure whether your policy covers you, or if your insurer has said you can only use their panel, then call us on 020 7388 1658 to speak to one of our expert solicitors. If you complete our online form, one of our team will be happy to call you back.
Whilst we do not offer legal aid for employment cases, legal aid is available for people in receipt of benefits or on a low income, although only for discrimination cases, and it covers only case preparation, not representation at the tribunal. If you believe you will be eligible for legal aid, you can contact the Community Legal Service to find a solicitor who may be able to help you.
The Free Representation Unit may be able to assist with representation at the tribunal; referrals must be made through a referral agency such as the Citizens Advice Bureau, a Law Centre, or a charity such as MIND.
Employer funding options
Some businesses will have insurance policies or business bank accounts which offer employment law advice and representation.
Under the terms of your insurance policy, your insurer will suggest that you should use one of their ‘panel’ of solicitors, but they must tell you that you are free to instruct the solicitor of your choice. If you are not sure whether your policy covers you, or if your insurer has said you can only use their panel, then call us on 020 7388 1658 to speak to one of our expert solicitors, including our specialist dental lawyers UK. If you complete our online form, one of our team will be happy to call you back.
Parties should be aware that costs are not usually awarded in an employment tribunal.
What is the time limit for making an employment tribunal claim?
3 months is the time limit for most claims to an employment tribunal. This includes unfair dismissal, discrimination, unlawful deduction of wages, and claims under the Working Time Regulations.
The time limit is 6 months for redundancy payments and equal pay claims.
Time limits are strictly enforced, so it is vital that they are calculated properly. A tribunal will only extend a time limit in exceptional circumstances, when a claimant can show that it was ‘not reasonably practicable’ to present the claim within the time limit, if the claim is for unfair dismissal, unlawful deduction from wages, or breach of contract.
In claims involving redundancy payments and discrimination, a claimant can seek to extend a time limit if it is ‘just and equitable to do so,’ which allows the tribunal a broader discretion.
Since 6th May 2014 anyone intending to lodge a claim in an employment tribunal must first contact ACAS. This is because ‘ACAS Early Conciliation’ is now mandatory. The time limit for the claim is then extended whilst conciliation takes place.
If you intend to make a claim against your employer and you need help to calculate the applicable time limit, or if you are an employer and you want more detailed advice about time limits, then call us on 020 7388 1658 to speak to one of our expert solicitors or dental lawyers UK. If you complete our online form, one of our team will be happy to call you back.
What is discrimination?
When an employer treats an employee less favourably than they treat, or would treat, another employee; and the reason for that less favourable treatment is, or is related to, a protected characteristic, that can amount to discrimination.
What is a protected characteristic?
The Equality Act 2010 details 9 ‘protected characteristics,’ these are:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- race (which includes colour, nationality, ethnic, or national origins)
- religion or belief
- sexual orientation
Types of discrimination
There are 2 types of discrimination which are unlawful; these are direct and indirect discrimination.
Although in certain circumstances the law allows discrimination, where it is a ’proportionate means of achieving a legitimate aim.’
There is also a duty on employers to make reasonable adjustments for disabled employees.
Harassment is unlawful when it is related to a protected characteristic (excluding marriage and civil partnership, pregnancy and maternity).
No qualifying period
Unlike unfair dismissal, there is no minimum service period for an employee who wishes to claim that the reason for their dismissal was due to discrimination. Employees can also bring claims whilst they are still employed, for example, where their employer has failed to make reasonable adjustments.
If you have been discriminated against by your employer, or if you are an employer and you are concerned about the law relating to discrimination and your employees, then call us on 020 7388 1658 to speak to one of our expert solicitors or dental lawyers UK. If you complete our online form, one of our team will be happy to call you back.
What is the time limit for making an employment tribunal claim? What is unfair dismissal?
Put simply, when an employee is dismissed and the reason for the dismissal and/or the way in which they were dismissed is legally unfair.
An employer can fairly dismiss an employee for the following reasons:
- statutory restriction
- some other substantial reason
Even if the employer can show that the dismissal was for one of these potentially fair reasons, the employer must also be able to show that they acted ‘reasonably.’
*since the abolition of the Default Retirement Age in April 2011 employers should beware of potential age discrimination when considering dismissals for retirement
What is reasonable?
A tribunal will consider first whether a fair procedure was used, and second, whether the decision to dismiss fell within the ‘range of reasonable responses.’
What if you resign?
An employee may be able to claim ‘constructive unfair dismissal,’ if they can show that the reason they resigned was in response to a fundamental breach of their contract by their employer.
What is the qualifying period?
To claim unfair dismissal, an employee must usually have a minimum of 2 years continuous service; although there are some instances when a dismissal is considered ‘automatically unfair,’ such as when it is related to discrimination.
If you have been dismissed and think that it may have been unfair, or if you are an employer and you are considering dismissing an employee, then call us on 020 7388 1658 to speak to one of our expert solicitors or dental lawyers UK. If you complete our online form, one of our team will be happy to call you back.
Wills, Trusts and Probate
What is a Will?
A Will is a legal document which sets out your wishes as to how your want your property and assets to be distributed when you die. You can specify who you want certain amounts of money or items to go to. You can also specify if there is someone that you specifically do not want to inherit all or any of your estate.
You can also specify the person(s) you wish to appoint as guardians for any children you have in the event that both you and their other parent pass away at the same time.
Your Will contains your instructions about how you wish to distribute your property after you die. It is important that you create one whilst you are able.
Do I need a Will?
There is no legal obligation on a person to have a Will. However it is very important to some people as it ensures that their personal wishes are followed in the event of their death. If you do not have a Will you will have no control over who your estate will go to and in what order it will be distributed. Most people prefer to keep control over their own assets and like to decide who gets what.
Having a Will can be particularly important if you have children under 18, or have caring responsibility for an elderly or disabled person. Your Will can set out what arrangements you want to be put in place for their care after you die.
Whilst you may feel that the law on intestacy currently reflects what you want to happen to your estate, and therefore feel a Will is pointless, please bear in mind that there is nothing to prevent parliament making changes to intestacy rules at any point in the future. Any future changes to those rules may not reflect what you want to happen with your belongings.
I already have a Will. Do I need a new one?
People’s lives change over time; people get married, divorced, have children and so on. The value of your estate might go up so that you become liable to inheritance tax or you might acquire items of property that you want to leave to a specific individual.
What might have been right when you wrote your will might not be right now.
It is always worth ensuring that your Will is up to date. If there are alterations to be made you do not necessarily need to start again from scratch. An addition to your Will called a ‘Codicil’ could be used instead.
Aren’t Wills just full of complicated legal jargon?
Your Will can be as simple or as complicated as you want it to be. Our job is to express your wishes in a clear and concise manner without unnecessary legal terminology. Some legal terms are of course unavoidable in Wills, but we always provide you with a full explanation of any such terms in simple, plain English.
If you don’t understand any of the terms in your Will it is very important that you tell the person who drafted it for you. Our lawyers are able to answer any questions you may have about the content of your Will.
Why do I need a solicitor to draft my Will?
The simple answer is that you don’t. However, in order for a Will to be valid it has to comply with certain requirements. In the event that it is not validly created certain gifts or legacies may not go to their intended recipient.
If there is a dispute as to the validity of your Will and it is challenged in court your estate may bear the costs of court proceedings, potentially minimising the amount your beneficiaries receive.
Even a relatively small error could result in all or part of the document being rendered invalid. Any previous Will could then be referred to or if no prior Will exists the rules of intestacy will apply.
Whilst there are other types of Will writers in existence we would certainly consider a solicitor to be the more sensible option. We provide clear advice based on your specific needs on a case-by-case basis and provide a genuine estimate of costs based on the Will as a complete document. Many companies offer a very attractive initial price but then add to that by charging per additional clause or layer of beneficiaries. The Solicitors Regulation Authority requires that all solicitors hold a valid insurance policy; Will writers are not bound by the same requirement.
Furthermore if the solicitor holding your Will ceases to exist any files and documents will be transferred to another firm or the Law Society. There is no guarantee that a private company holding your Will would do the same so there may not be any record of that document being in existence, thus defeating the point of having a Will in the first place.
What if I don’t have much property?
There is no minimum or maximum amount of property that you need to possess for the purposes of making a Will. However, your estate may have to pay inheritance tax if it is above a certain amount. Proper planning of your estate through the use of a Will could help to minimise any such tax liability.
Ultimately your property and estate is yours to deal with as you choose and therefore you should consider making a Will regardless of the value of your estate. This is in order that you can be sure that the people you choose will inherit your estate, not those the law chooses.
Sometimes the most important possessions we own are sentimental rather than financially valuable and you may wish to ensure that those items continue to be cherished after your death.
If I am married does my husband/wife inherit my estate regardless of whether I have a Will or not?
In certain circumstances your spouse may only be entitled to a certain value of your estate which could potentially result in your home having to be sold in order that other beneficiaries can inherit the share they are entitled to.
If you are intending to marry and pass away before your wedding your fiancé would not automatically be entitled to any inheritance.
Some joint assets may pass to your spouse regardless of a Will but that is dependent on how they are owned jointly. If you are unsure you should seek legal advice.
Not necessarily. A surviving spouse would inherit all of your estate if the value of it is below £250,000.00
If your estate is above that amount things begin to get slightly more complicated and will depend on a number of things such as the total value of your estate and whether you have any other relatives alive at the time of your death. Potentially part of your estate could go to any surviving parents, siblings, nieces or nephews with your spouse only having a ‘life interest’ in part of your estate.
What is a grant of probate?
A grant of probate is the document that allows your executors to call in the assets which make up your estate before they can be distributed.
It gives your executors the power to deal with your estate and to distribute it in accordance with your Will. Your executors should be somebody you trust but could also be a professional such as a partner in a law firm, an accountant or similar.
Although it is the executors who are named as the persons to deal with your estate they can seek legal advice and help in calling in the estate and distributing it so even if they have no previous experience of acting as an executor they can be named in your Will.
What is intestacy?
A person dies ‘intestate’ if they do not have a valid Will in existence at the time of their death.
The law rather than the deceased themselves dictates who will inherit an estate if a person dies intestate. Whilst the laws of intestacy may be appropriate to your own personal circumstances at the moment there is no guarantee that either the law or your circumstances will not change in the future.
The provisions are complicated and your estate will not automatically go entirely straight to your husband, wife or civil partner. If you are unmarried your partner will certainly not get anything as an automatic right and parents or siblings could inherit your estate if they are still alive. A challenge by someone who believes they ought to have inherited a share of your estate could be a lengthy and costly process.
Get in touch with our dedicated JFH Law team today to see how our tailored services can help you.