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THE PROBLEM

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THE SOLUTION

Early objective advice on recovering your money is essential.

At Legal Studio we take the time to understand you and your business so we can provide you with expert, practical advice on your case. We don’t do bulk, generic or one size fits all responses.

We also understand the need for cost effectiveness, Whether it’s the method of recovery pursued or an early frank conversation regarding fees; we’re happy to talk.

Get in touch now to discuss your options and a commercial solution to your problems.

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PROPERTY INVESTMENT NEWS

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James Perry’s top 10 tips for an effective disclosure exercise

 
Disclosure is probably the most important stage of any civil case. Here, James Perry sets out his top tips for conducting a decent disclosure exercise.
 
TIP 1 - Understand the Importance of Disclosure:
 
Firstly, as a client, understand the importance of disclosure. The disclosing of documents is a critical part of a dispute. The success or failure of a claim often hinges on what you disclose so a good search is of paramount importance. Getting it right in one-sitting is also the sort of optics you want for you case. Proper disclosure ensures transparency and credibility during the legal proceedings. There is nothing worse than pulling out a document late that you should have found at the start. That’s the kind of look you want to avoid!
 
TIP 2 - Prepare Early:
 
It is never too early to start the task of disclosing documents and you need to understand that preserving documents from the very outset is important so make sure nothing is about to be destroyed. Waiting until the last minute to deal with disclosure can also lead to inefficiencies and mistakes so think about it from the outset, think about how you are going to do it and stick to your plan. Map out your process, make sure everyone in the business that needs to know about it is sent a copy, and don’t deviate from it unless you have to. There is nothing worse than explaining to a Court a piecemeal disclosure exercise which lacked logic so make sure you identify relevant documents properly and organise them systematically.
 
TIP 3 - Know the Rules:
 
Do not leave the rules to your lawyers. Get a basic understanding of them because it will help with the exercise. Familiarise yourself with Part 31 of the Civil Procedure Rules (CPR) and Practice Directions on disclosure and ask if you don’t understand something. We don’t bite!
 
TIP 4 - Collaborate, collaborate, collaborate:
 
Work closely with your legal team. They can guide you through the process and help you comply with the rules. Do not leave it to them. Help them by organising things for them or don’t complain about the end at the end. It will be far more expensive. Make sure you seek advice on what documents to disclose and how to handle privileged information.
 
TIP 5 - Maintain a Document Trail:
 
Keep tight records of your disclosure process. Document the steps you’ve taken, searches conducted, and decisions made. Set out how you found something, particularly if it is the key piece of evidence you needed for your case. This helps you to demonstrate diligence and compliance if challenged later.
 
TIP 6 - Be Thorough:
 
Conduct a comprehensive search for relevant documents. This includes electronic records, emails, contracts, and correspondence. Don’t overlook minor details; even seemingly insignificant documents may be relevant. Have a method in place for cracking the dreaded email chains. How are you going to handle email chains to ensure the story makes sense? Email chains are back-to-front. What is your plan to handle that problem? This is where the most mistakes happen if you don’t master this problem.
 
TIP 7 - Consider Privilege and Redaction:
 
Try to have at least a working understanding of legal privilege (e.g., legal advice privilege, litigation privilege). Some documents may be exempt from disclosure and you may be able to redact sensitive or irrelevant information to protect confidentiality. This is the part when your lawyer comes in very handy!
 
TIP 8 - Use Technology Wisely:
 
Use e-discovery tools and software to manage large volumes of data efficiently. Consider using keyword searches, filters, and categorisation. When you are buying in software make sure your procurement team assess how easy it is to search and extract data should the software form a part of a disclosure exercise. There is nothing more frustrating than taking screenshots because the data is too tightly locked into the software.
 
TIP 9 - Be Transparent with the Other Party:

 
Yes, they are perceived as the enemy but if you communicate openly about the disclosure process you are less likely to end up at Court arguing over disclosure points and spending even more money on the exercise. Share relevant information promptly and make the process of disclosure smooth even if you are at loggerheads with each other regarding the dispute. It benefits everyone if you conduct a disclosure exercise in this way.
 
TIP 10 - Review and Update:

 
Do not think that when the list is done, you’re done. Regularly review your disclosure list. Update it as new documents become available or you spot new searches that need to be conducted. Always be prepared to justify your decisions during the case and recognise that being quick to report a change in circumstances is going to put you in the best light.
 
Remember, proper disclosure contributes to a fair and efficient legal process. It also gives you the best possible chance of settling your dispute before you get to Trial so make it count.
 
 
2024 56 08
James Perry

LexisNexis 2024 report

Disloyal lawyers: has the partner track lost its lustre?


According to a recent LexisNexis report of more than 500 lawyers across the UK (Disloyal lawyers: has the partner track lost its lustre?) Lawyers are increasingly opting not to pursue partnership positions within law firms due to concerns about burnout and work-life balance.

Some key findings of the report are:
 
Only a quarter of associates want to become a partner at their firm in the next five years.
 
Half of leaders have noticed a decline in the number of associates seeking to become a partner.
 
Work life balance is the most important factor for associates when seeking to move firms.
 
According to the report Elizabeth Rimmer, the CEO of LawCare, says. "Junior solicitors are no longer aspiring to be partners," she says. "They will likely take one look at the lifestyle of current partners and be put off."

 

How is Legal Studio different?

 
How is the consultancy model at Legal Studio different to the traditional model?
  
At Legal Studio we prioritize collaboration and support. Avoiding the politics and targets that can come with a traditional law firm. By becoming a Consultant Solicitor you are free to practice law on your own terms by choosing your own hours and clients. All while retaining up to ninety percent of the fees you generate.

We look after compliance, provide admin and cashier support as well as market leading legal software, freeing up your time to practice law and enjoy work.
 
At Legal Studio we are different to a traditional law firm and this difference is reflected in our consultant retention rate which was 100% in 2023.
 
 

Full report:

https://www.lexisnexis.co.uk/insights/disloyal-lawyers-and-the-partnership-model/index.html



Contact Us


 
 

 
2024 14 13
Ian Mccann
How Legal Studio is part of the movement redefining the legal profession

In the ever-evolving world of legal practice, the recently published, Codex Edge report has shone a light on a seismic shift toward platform law firms. This shift isn't just about changing where lawyers work; it's about transforming how they work, why they work, and importantly, how they feel about their work. At Legal Studio, we're riding the crest of this wave, not just participating in the trend but leading the charge toward a more fulfilling legal profession.

Here's what the report reveals and how we’re helping lawyers fall back in love with practicing law.

The Allure of Platform Law Firms

The report lays bare a truth many have felt but few have quantified: platform law firms are burgeoning. With a compound annual growth rate head and shoulders above traditional practices, these nimble, innovative firms are not just surviving; they're thriving. But why?

It's simple, really. Lawyers are seeking more from their careers than billable hours and bottom lines. They're looking for autonomy, flexibility, and the chance to do meaningful work on their terms. They're looking for a way to rediscover the joy in their work. And that's where platform law firms, (especially Legal Studio, and yes, we would say that) come into play.

The Legal Studio Difference

At Legal Studio, we're not just a platform law firm; we're a community. A tribe of lawyers from all walks of life who've found a home where they can practice law as they've always wanted to. But what makes us stand out in the crowded landscape of platform law firms?
  • Diversity and Inclusion: We attract lawyers from diverse backgrounds and specialisations, not just because we're a platform for everyone, but because we believe diversity drives innovation. Whether you're a seasoned partner tired of the traditional grind or a mid-career lawyer looking for a more meaningful way to practice, you'll find a place here.
 
  • Retention That Speaks Volumes: The Codex Edge report highlights the churn traditional firms face, losing talent as fast as they gain it. At Legal Studio, we're proud to buck that trend. Our retention rate? A staggering 100%. This isn't just a number; it's a testament to how well we support our lawyers, helping them build practices that are not only successful but enjoyable.
 
  • A Culture of Enjoyment: Here's the secret sauce—enjoyment. We believe that enjoying your work is non-negotiable. This means creating an environment where lawyers have the autonomy to choose their projects, the flexibility to work how they want, and the support to grow personally and professionally. It's about making sure that every lawyer who joins us finds more than just a place to work; they find a way to work that brings joy back into the equation.

The Future is Bright (and Enjoyable)

As the Codex Edge report suggests, the trend toward platform law firms is more than just a blip; it's the future of legal practice. And at Legal Studio, we're not just ready for the future; we're shaping it. We offer a space where lawyers can truly enjoy their work, ensuring that they're not just part of our present but our future.
 
And, while the report shines a spotlight on the broader trends within the legal industry, it's the stories of individual lawyers finding joy, balance, and fulfilment at Legal Studio that truly illustrate the potential of platform law firms.

Our unique blend of support, community, and flexibility means that we're not just attracting lawyers from all walks of life; we're retaining them by helping them rediscover the joy in their work.

Link here to the Codex Edge report in full Platform Firms Report 01.2024 (codexedge.com) for all the data etc.
 
2024 28 02
Ian Mccann
The use of generative artificial intelligence (AI) tools in the workplace is already here and will continue to grow and develop over time.

Do we need a workplace AI policy?

While some employers are seeking to restrict the use of AI in the workplace, other employers are choosing to embrace it, perhaps recognising opportunities to improve work processes and workflows and also, in much the same way as the rise of social media and the internet before that that the continuing growth of AI is to some extent probably inevitable.

From an HR perspective, this development necessitates the creation and implementation of new workplace policies to ensure that businesses and employees use AI tools appropriately.

What kind of information should a workplace AI policy contain?

It is crucial to provide a clear definition of generative AI, outlining what it is, what it isn't, and how, when, and why it should be used.

Well drafted AI polices will clarify the circumstances in which AI can be used and also help businesses and organisations to protect sensitive information, prevent copyright violations, and encourage the honest and accurate use of information. Data privacy is a key concern, as generative AI constantly learns from user-provided information, potentially exposing personal data to public access if adequate safeguards are not put in place.

Companies need to establish clear policies regarding trade secrets, personal information, and generative AI use to prevent data privacy issues.

Are there any particular legal concerns relating to the use of AI in the workplace?

Unfortunately, yes and we’ve already hinted at some of the key legal issues and concerns above. To avoid copyright violations and the potential spread of misinformation, businesses and organisations need to be clear about the limitations, potential biases, and uncertainties of AI-generated outputs. Employees need to be made aware that AI can and sometimes that it does generate inaccurate information and that they should not rely on it without critical evaluation.

In addition, there’s already plenty of evidence that AI algorithms can reinforce biased or discriminatory practices depending on what it’s being asked to do and where it is getting its prompts and core data and information from. Equally, using AI for employee monitoring can create data protection compliance issues and also reveal confidential personal information. Companies will need to address these concerns in their AI policies and ultimately via staff training.

Please contact Nathan Combes if you’d like more information about the issues raised in this update and/or or to find out more about our own AI and data protection related policies and advice that we’re able to provide.

Disclaimer: the information set out above does not constitute legal advice and it is provided for general information purposes only. No warranty, whether express or implied is given and neither the author or Legal Studio shall be liable for any technical, editorial, typographical, or other errors or omissions within the information provided.
 
2023 23 23
Nathan Combes
Legal Studio's James Perry gave the opening address at today's Law Society Dispute Resolution Conference.

The reaction to James' speech is covered here and an extract from his speech is here. We've already started contacting clients about the seismic impact of the Fixed Recoverable Costs Regime and agree with James' assessment that the current reforms are unfit for purpose.

If you'd like more information on the changes currently scheduled for 1 October 2023, please contact us using the form below to receive a free email summary or book in a free 15 Minute Video Call.

 
 

 
2023 52 14
James Perry
We're delighted to see North Eastern Regulatory Lawyers (NERL) which was co-founded by Edmund Conybeare going from strength to strength and receiving its first press coverage in the Yorkshire Legal News.

The group, which provides support, training and networking for the region's Regulatory Lawyers, was set up by Edmund and Matthew Breakell after Edmund's initial idea more than 10 years ago.

NERL's next meeting is currently planned for September and membership is free.

You can find the full article here NERL meets for regulatory updates and networking - Yorkshire Legal (yorkshirelegalnews.co.uk), but for more information on NERL, its activities and its support for the Regulatory Law community please do contact Edmund.

 
2023 58 30
Edmund Conybeare

The Landlord and Tenant Act 1954 (the Act) allows business tenants’ leases to continue after the fixed term expiry date. Either party can then apply to court for a new lease to be entered into. The parties will negotiate the new terms but if they are unable to reach agreement the court can decide.


In order to effectively negotiate the terms of the new lease it is important to have in mind the legal principles that the court will consider if the terms of the renewed lease are not agreed between the parties.
The legal basis on which the terms, other than rent and duration, are determined by the court is governed by section 35 of the Act. This states that “….. in determining those terms the court shall have regard to the terms of the current tenancy and to all relevant circumstances”.

In O’May v City of London Real Property Co Ltd [1983] 2 AC 726, (O’May) the House of Lords laid down general principles on the court’s exercise of its discretion pursuant to section 35 of the Act.

The O’May principles
  • The starting point is the terms of the original lease;
  • The burden of persuading the court to change the terms of the original lease sits with the party proposing the change;
  • The change in terms must be fair and reasonable in all of the circumstances;
  • In considering the proposed change, the court should take into account the comparatively weak negotiating position of a sitting tenant requiring renewal, particularly in conditions of scarcity, and the general purpose of the Act which is to protect the business interests of the tenant so far as they are affected by the approaching termination of the current lease.
  • The court will consider whether the detriment suffered by the non-proposing party can be compensated in monetary terms.
  • The court retains a wide discretion.
However, while the courts have considered and exercised their discretion under section 35 of the Act on several occasions, areas of uncertainty remain.

Updating a term to take account of legislative updates (e.g., changes to the Use Classes Order) would likely amount to reasonable modernisation. It is less clear whether other lease updates (e.g. the inclusion of uninsured risk provisions or clauses specific to new environmental legislation, such as energy performance certificates or minimum energy efficiency regulations) would be ordered by a court even if they are now market standard in new leases.  It should be noted, however, that market practice can be evidence of what is usually considered fair and reasonable by landlords and tenants (Edwards & Walkden (Norfolk) Ltd v City of London [2012] EWHC 2527 (Ch)).

Relevant industry standards and, in particular, the Code for Leasing Business Premises in England and Wales 2020 (2020 Code) may also provide a persuasive factor. In Edwards & Walkden, in relation to the inclusion of a term relating to rent and service charges, the Code of Practice issued by the Royal Institution of Chartered Surveyors entitled Service Charges in Commercial Property (2nd ed, 2011) was referred to by Sales J as evidence that the proposed term was fair and reasonable. As an aside, it should be noted that the 2020 Code is a RICS “practice statement” which means that parts of it (relating to heads of terms and negotiations) are mandatory for RICS members/regulated firms.  The remaining parts are “good practice”.  The RICS requires that the good practice requirements should also be followed save in “exceptional” circumstances and, though members may depart from the good practice requirements, the RICS may require them to “justify their decisions”.

Changing times: pandemic and green lease terms

The worldwide COVID-19 pandemic has prompted more recent significant changes in lease drafting. As a result the courts are having to consider whether to order lease terms that were simply not anticipated prior to March 2020.

Existing leases that are coming up for renewal now may not contain rent suspension terms in the event that the property is unable to open due to a pandemic. Such terms are starting to be included in some leases entered into post March 2020. The courts are therefore having to consider whether to include the terms within renewal leases.
 
Pandemic terms
 
On 2 July 2021, District Judge Jenkins sitting in the County Court at Brentford handed down judgment in Poundland Limited v Toplain Limited (unreported) (Poundland), an unopposed lease renewal concerning a Poundland store in Twickenham.
 
This case considered the question as to whether rent suspension terms will be ordered in renewal leases. The tenant requested a 50% reduction in rent and service charge where, broadly speaking, it was unable to open due to a lockdown. The parties were unable to agree on the principle of the inclusion of a rent suspension term. The term was not in the existing lease so the tenant had the burden of satisfying the court that the inclusion of the new term was fair and reasonable. DJ Jenkins declined to introduce such a term, following the guidance in O’May. He found that it would not be fair and reasonable “to impose on the landlord a sharing of the risk in circumstances over which the [landlord] would have no control whilst the [tenant] may have some by reference to reliefs or schemes that might be available to them by the government”. The tenant’s proposed suspensions of compliance with other obligations, and of the right to forfeit, were also rejected by DJ Jenkins.
 
Green lease terms
 
With the UK aiming to achieve Net Zero by 2050, the past few years have seen the introduction of a variety of reforms, policies and initiatives to achieve this objective. Green lease terms have become prevalent over the past ten years, so that many leases coming up for renewal now will not have included them.
 
From 1 April 2018 landlords of non-domestic private rented property have, subject to certain exemptions, been prohibited from granting a new or renewal tenancy unless they have made all the relevant energy efficiency improvements for the property: regulations 27 and 29 of the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 (SI 2015/962).  The aforementioned regulations brought into force Minimum Energy Efficiency Standards (MEES Regulations).
 
From 1 April 2023 landlords who continue to rent such sub-standard properties even under a continuing tenancy will be liable to be fined up to a maximum of £150,000.
 
It is, therefore, extremely beneficial to landlords to review whether the terms of their existing and new leases will give them sufficient rights to carry out necessary works; and will protect them from acts or omissions of their tenants which might place them in breach of the MEES Regulations.
 
The courts are aware of the burden imposed on landlords by the existing MEES Regulations. However, whilst more landlords seek to improve the energy efficiency of their properties, the case of Clipper Logistics Plc v Scottish Equitable Plc (unreported, County Court at Sheffield, 7 March 2022) (Clipper) suggests that the court may not allow landlords’ to share their green liability where to do so would impose additional burdens on tenants.  In Clipper the County Court had the opportunity to consider the scope of section 35 of the Act to include modernising provisions which seek to protect the landlord from risks associated with the MEES Regulations, an example of so called "green lease" terms.
 
In Clipper the court was required to determine whether the following ‘green lease’ terms proposed by the landlord should be included in a renewal lease.
 
  • Prohibition on alterations that would result in a sub-standard Energy Performance Certificate (EPC) rating
  • An indemnity for the cost of a new EPC if the tenant makes alterations
  • An obligation to maintain the current EPC rating and to carry out remedial works to restore the EPC if it fails to do so
 
Having considered the landlord’s proposed green lease terms, the judge held:
 
"I entirely accept that it is reasonable for the Defendant to wish to have protection against the undoubtedly adverse consequences for it which an energy rating below ‘E’ would or could bring. I am not persuaded, however, that there is any reasonable need for all of the new clauses which the Defendant proposes in order that sufficient protection is in this respect afforded to it.”
 
The court’s starting position was that it is the landlord’s responsibility to comply with energy efficiency regulations. It acknowledged that, without any mechanism to regulate the tenant’s actions, a landlord could be “placed in breach of the regulations through no fault of their own”. However, given the current provisions of the lease, it did not consider all of the proposed clauses to be necessary. Following O’May principles the court decided:
 
  • The existing prohibitions in the lease on alterations were sufficient to protect the landlord from tenant acts that could damage the EPC rating of the property.
  • The indemnity would place too significant a burden on the tenant
  • The requirement of the tenant to “return the premises to the Landlord with the same EPC rating as it has as the date of this Lease” was a fair and reasonable addition to protect the landlord from inaction by the tenant over a 10 year term and this change reflected the coming into force of the MEES Regulations 2018.
 
It should be noted that Poundland and Clipper were County Court decisions and so whilst the decisions may be indicative of the approach the courts are likely to take going forward, it does not act so as to bind them.
 
Practice considerations
 
The question of what is “fair and reasonable” requires the court to look beyond the original lease. It is clear from the cases that the courts are prepared to exercise their discretion to authorise departures from existing lease terms in the interests of justice and fairness. However, the court will consider the implications of all of the relevant circumstances and a departure from existing terms may not be justified if it results in an unreasonable change to the commercial position of the parties. The cases indicate that while the court will give consideration to changing practices and external forces the court will give primacy to the commercial bargain struck between the parties and be unlikely to give effect to any new term which is particularly burdensome on either party. 

For more information, please contact Patrick Griffin on 0113 247 3800 or by emailing patrick.griffin@legalstudio.co.uk

The above article is not intended to be legal advice. Every case is fact specific and requires advice tailored to the issues arising in that particular case. 
 
 
2022 51 08
Patrick Griffin
UK DATA PROTECTION UPDATE |  A NEW SIMPLIFIED APPROACH?
 
New government proposals aim to reduce the existing regulatory & compliance related burden for UK based employers and organisations.

Employers and organisations have long complained that whilst well intended, the introduction of the GDPR in 2018 made aspects of data protection compliance overly complex and unnecessarily burdensome.

The government’s new Data Protection and Digital Information Bill contains several interesting proposals aimed at reforming existing UK data protection legislation.

Key proposed changes and developments include:
  • Establishing  a new framework for the provision of "digital verification services". These would enable a person’s digital identity to be used with the same confidence as their existing paper documents.
  • Updating the PECR to cut down on the requirement for website 'user consent' pop-ups and banners.
  • Abolishing the Information Commissioner’s Office and transferring its functions to a new 'Information Commission'. In future there would also be a new duty for the UK’s data protection regulator which would require it to have regard to "economic growth and innovation".
  • Amend the existing definition of 'personal data' to make it easier for data controllers to identify the type of information that is likely to constitute personal data for the purposes of the UK GDPR and the Data Protection Act 2018.
  • Creating a limited list of 'legitimate interests' which would allow businesses to process personal data without first having to apply a balancing test.
  • A new requirement for individuals to attempt to resolve any data protection related issues with the relevant controller before raising a data protection complaint with the ICO.
Please contact Nathan Combes if you’d like more information about the issues raised in this update and/or or to find out more about data protection related policies, documents, advice and training that we provide.

Disclaimer: the information set out above does not constitute legal advice and it is provided for general information purposes only. No warranty, whether express or implied is given and neither the author or Legal Studio shall be liable for any technical, editorial, typographical or other errors or omissions within the information provided.
 
2022 53 02
Nathan Combes

Many employers have become increasingly adept over the years at understanding the difficulties that can be encountered by disabled employees and the additional measures that may need to be put in place to compensate for those difficulties and enable the disabled employee to participate effectively in the workplace.

Thanks in part to increasing public awareness generally and the gradual erosion of prejudice and misunderstanding, conditions which were previously glossed over and ignored are now being discussed more openly. Old stigmas and outdated views are gradually being dismantled and employers are beginning to understand that a pro-active and informed approach to neurodiversity can result in lasting and positive outcomes.

What is neurodiversity?

In its simplest terms, neurodiversity refers to a difference in brain processing which impacts upon an individual’s learning, sensory processing and social interaction.

Current research suggests that as much as 15% of the general population are neurodivergent.

Some of the more commonly encountered neurodiverse conditions include dyslexia, dyscalculia, autism and ADHD.

Are all neurodivergent employees disabled?

The short answer is no. Neurodivergence exists on a spectrum. Accordingly, there are many individuals with a neurodivergent condition who would not class themselves as being disabled.

The key legislation for employment law purposes is the Equality Act 2010 ("EqA"). The EqA confirms that the key test for establishing whether an individual will be considered as being disabled (for the purposes of the Act) is as follows:

  • Does the person have a physical or mental impairment?
  • Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities? 
  • Is that effect substantial?
  • Is that effect long-term?Accordingly, each case is assessed on its own merits.
I’ve heard neurodiversity being referred to as a "hidden" or "invisible" disability what does that mean?

That’s a good question. These terms are often used by lawyers and tribunals in cases involving neurodivergent employees because unlike some of the more obvious physical and mental impairments, neurodiverse conditions may not be self-evident, Additionally, neurodiverse conditions sometimes only impact or become evident in particular situations, or in relation to certain types of duties, requests or responsibilities.

What legal obligations does the EqA create for my organisation in respect of neurodivergent employees?

The EqA confirms that organisations must:
  • not treat employee less favourably because of their neurodiversity (direct discrimination);
  • not treat employees unfavourably for a reason arising from their neurodiversity (unfavourable treatment) unless that treatment can be justified; 
  • not subject the neurodivergent employee to unlawful harassment, unjustified indirect discrimination or victimisation; and
  • pro-actively explore whether reasonable adjustments can be made.

Are there any particular risks that we should be aware of?

Yes, there are. There’s a legal concept in discrimination law known as "constructive knowledge".  Put simply, if an employer is not fixed with actual knowledge of the disability, liability can still arise where there were evidence and clues which should have prompted it to make further enquires.

Additionally, when assessing a neurodiverse condition in order to decide whether it has a "substantial and long-term effect on an individual’s day-to-day activities", employers must ignore any medication, coping mechanisms (such as counselling or masking) or treatment interventions which may mask the true effect of the neurodivergent condition.

Our organisation wants to become better at understanding and handling neurodiversity. What can we do?

Your organisation could consider adopting one or more of the following steps:
  • Try to avoid "medicalising" the issue. Focus instead on trying to understand how a neurodivergent employee’s condition impacts upon them and then work with them to try and identify what adjustments can be made and whether any additional support can be provided.
  • Enquire sensitively (remember there’s still a lot of stigma attached to neurodiversity) and investigate fully. Whenever possible talk with both the employee and any relevant experts. Invaluable information and support can also be obtained from specialist or charitable organisations. 
  • Avoid the trap of focusing solely on the individual employee’s areas of difficulty; consider also which tasks play to their strengths. This might lead on to redesigning a job role or adopting a more flexible and "person centred" approach.
  • Consider whether any internal management process needs to be amended in order to minimise any adverse impact upon the employee and to maximise the prospect of active, responsive and meaningful participation.
Please contact us if you’d like more information about the issues raised in this article and/or or to find out more about the various Employment Law and HR related policies, procedures, guidance and workplace diversity training that we provide.

Disclaimer: the information set out above does not constitute legal advice and it is provided for general information purposes only. No warranty, whether express or implied is given and neither the author or Legal Studio shall be liable for any technical, editorial, typographical or other errors or omissions within the information provided.
 
 
2022 57 14
Nathan Combes
On 6 April 2022, the law changed in relation to applications for divorce. It is now possible to start divorce proceedings simply on the basis that the marriage has broken down. This is a massive shift from the old system and has been much anticipated by family lawyers and clients.
 
Today, I filed my first divorce application on behalf of a client under the new “no fault“ divorce rules. It felt strange to only have to indicate that the reason for the application was irretrievable breakdown of marriage. Under the “old” divorce law, a couple who had been separated for less than 2 years could only commence divorce by relying on a “fault” ground - either unreasonable behaviour or adultery. There were “no fault“ grounds under the old law, but this required a couple to be separated for at least 2 years and, if separated for less than 5 years, to be reliant upon the other spouse consenting to the divorce. This meant a couple, who maybe had been separated for a few months (as my client in today’s application) would either have to blame the other spouse for the breakdown of the marriage or wait 2 years for the 2 years separation with consent ground. Even if it was the case that neither spouse was in a rush to re-marry, the fact of having to wait for 2 years to commence the divorce application often meant they felt unable to fully move on with their lives. They were tied to each other financially, because the court cannot give effect to financial clean break until decree nisi stage of the divorce proceedings. A pension sharing order could not be made until the consent order was filed and could not be implemented until decree absolute. The couple remained tied to each other financially, even where they had separated amicably.
 
This led me to think, does this mean couples will separate more readily or that it will be “easier” to get a divorce? Certainly that is how it has been portrayed in the press, but in my experience (20 years as a family solicitor) if a couple wished to separate formally and finalise their finances, they would quite often resort to the “unreasonable behaviour” ground. Even if they kept the allegations mild and tried to agree them with each other in advance, it was still difficult for the respondent spouse to find themselves unable to put their side of a marital breakdown across in the divorce application. And even in the most amicable cases, this could lead to ill-feeling. Where there are young children involved and the couple remain in each other’s lives for a significant period of time, an unreasonable behaviour divorce petition could leave a sour taste.
 
The new system is, in my view, much kinder in its approach - it even allows for a joint application to be made (alongside the option of a sole application). Already, my experience of this one divorce application I have filed, it has a different feeling to it. I got the impression that the couple had felt much more comfortable approaching matters on a “no fault” basis. I have a number of clients who have waited for the new law to come into effect before looking to commence the divorce application. Over time, we will see whether there is an increase in divorce rates, but I cannot see that being the case. What I can see is it leading to more amicable separations.

For more information contact Angela Lally on 0113 247 3804 or email at angela.lally@legalstudio.co.uk
2022 39 21
Angela Lally
Restrictive covenant clauses within employment contracts restrain how employees can act in the future. Ordinarily, this relates to dealing with clients of their employer, or working for a competitor following the termination of their employment. To justify a restraint of trade clause it must be proved that the clause is reasonable and in the interests of the parties. Generally, the courts will not enforce provisions relating to mere competition. It must be established that there is a legitimate interest which requires protection – for example, confidential documents, lists of clients or specific details within contracts.
 
Once a legitimate interest is identified, the restrictive covenant in question needs to be no more extensive than is necessary to protect that interest – i.e. limited in scope and time. The courts are much less sympathetic to restraints within employment contracts as opposed to in commercial contracts as it is understood that usually employees are in a weaker bargaining position than employers. The enforceability of restrictive covenants is highly fact specific and will depend upon the wording of the clause.
 
Let’s look at previous decisions relating to restrictive covenants and their enforceability and reasonableness.
 
Garden Leave
 
In one case the High Court was asked to consider whether a stockbroker could be placed on garden leave for the entirety of his 12-month notice period. The court considered that the provision was reasonably necessary to protect the company’s legitimate business interests. The stockbroker had signed a revised contract which included the clause and also increased his salary from £40,000 to £120,000.
 
In a further case relating to garden leave, an employer was entitled to place three employees on garden leave during the period of their notice period despite there being no garden leave clause within their employment contracts. This was due to the fact that the employees had breached their contracts and there was no onus upon the employer to provide work to the employees due to the breaches.
 
Non-Compete
 
A financial adviser had a restrictive covenant that prevented him from providing any services for a period of 9 months following the termination of his employment. However, this was ruled invalid as the adviser had been working with a client base in one particular region of the country. Furthermore, the length of the covenant was deemed too long as he had left his employment after only six months.
 
A six month non-compete clause was deemed invalid for a junior employee as the considered it was inappropriate for someone of that level. The clause was also deemed unenforceable as the scope was too wide. The clause sought to restrain the employee from being engaged in work of a similar nature to that of the employer to the employer’s questions – it was deemed too wide as it concerned all customers not solely those of which the employee had knowledge of or dealt with previously.
 
For more information, please contact Sean McHale on 0113 247 3800 or by emailing sean.mchale@legalstudio.co.uk
 
2022 48 04
Sean McHale
What is a Settlement Agreement?
 
A settlement agreement is a legally binding contract between an employer and an employee which brings the employee’s employment to an end. In essence, the employer terminates the employee’s employment in return for paying the employee a sum of money.
 
What sum of money should the employee receive?
 
The amount of money paid to an employee under a settlement agreement is discretionary. However, primarily, the employee will be entitled to payment of their notice pay and redundancy payment (which is dependent upon the employee’s age and the number of years which they have worked at the company). However, depending upon whether the employee has worked at the company for longer than 2 years, and dependent upon the circumstances of the end of the employee’s employment, they will be entitled to a further payment. As to the exact amount, the employee and employer will need to take advice from an employment law specialist. Relevant factors will include:
 
  • The seniority of the employee;
  • The validity or complexity of any claims;
  • The circumstances of the departure, whether it is on good terms or otherwise.
 
Can the employee still pursue a claim against the employer after signing the settlement agreement?
 
In order for the settlement agreement to be legal binding the employee must take independent legal advice. However, once this done the employee can no longer pursue a claim against the employer, save for any which have been exempted (usually in relation to pensions or an injury/illness of which the employee may not be aware).
 
Is an employee compelled to accept a settlement agreement?
 
There is no obligation upon an employee to accept a settlement agreement once it is proposed to them. However, there will almost always be circumstances which have led to a settlement agreement being offered – such as a breakdown in the relationship, a redundancy situation or pending disciplinary proceedings.
 
What happens to bonus payments?
 
The employee will need to be aware that if their termination date arrives before the date for payment of a bonus then they shall not be entitled to payment of the bonus. Therefore, either the termination date shall need to be amended to occur after the date of the bonus payment, or payment of the pending bonus made as part of the terms of the settlement agreement.
 
Is the Termination Payment tax free?
 
Yes, the termination payment is tax free up to a limit of £30,000.00 pursuant to the Income Tax (Earnings and Pensions Act) 2003. However, notice and salary payments under the settlement agreement shall be taxed in the usual way.
 
For more information please contact Sean McHale on 0113 247 3800 or by emailing sean.mchale@legalstudio.co.uk
 
 
 
2022 34 04
Sean McHale
Probate Applications during Covid-19
 
Covid-19 has had a significant impact on the process of obtaining a Grant of Probate in the estate of a person who has died in order to administer their estate.

A Grant of Probate is a document issued by the Probate Registry giving the executors named in the Will of a person who has died, the legal authority to administer their estate.  If a person left no Will, then the people entitled to the estate are the next in line to apply for what is called a Grant of Letters of Administration.

Regardless of which type of Grant is needed, the process is largely similar requiring completion of an Inland Revenue account – an inventory of the estate assets and liabilities in effect.  This will enable the executors and HMRC to calculate whether any inheritance tax is due as a result of the death and if so, part of that tax must be paid ‘up front’ when the application for the Grant is made.  Once that tax bill has been, HMRC issue a receipt, which in turn allows the executors to apply to the Probate Registry for whichever Grant they require.   Incidentally, the remainder of the tax is usually payable around 6 months later and can be postponed to be paid by ten annual instalments if the executors and beneficiaries prefer this.  This means that it isn’t always necessary to have to sell property in order to pay the tax bill, which is helpful to families wanting to keep the family home, for example.

Once the Grant has been issued, the executors can then sell property, close accounts, and pay debts before making distributions to the people entitled to receive the estate.

As a probate practitioner, I can report it has been a painful journey, navigating through a new and improved online probate application process at a time when tragically, deaths as a result of the pandemic have increased significantly.  This has put a lot of pressure on the Probate Registry.

The days of advising clients of a wait of 7-10 working days to receive the Grant seem like a distant memory and we are now waiting anything from 1-3 months, more so in an estate where inheritance tax is payable.

The good news is that the Probate Registry and HMRC have taken steps to make the process a little easier in the light of the practical difficulties arising from the pandemic restrictions. 
 
  • Both will now accept electronic signatures on the probate application forms and the Inland Revenue accounts, which makes a lot of sense given electronic capabilities and avoids the need to circulate a document between several executors at different addresses, which could take weeks.
 
  • Applications for Grants are now made online through the Probate Registry’s portal and updates can be found by checking the portal after submission.  Enquiries are sent by email so can be responded to the same day meaning much quicker turnaround times where additional information might be needed to process an application.  It is still necessary to send paperwork after the online submission has been made – including the original Will, if there is one – but it is reassuring to know that the account has been opened already, so to speak.
 
The Stamp Duty Land Tax (SDLT) incentives offered by the Government through the pandemic has boosted the property market without question, but the knock-on effect is that there are horrendous delays in processing by the Land Registry.  The reason is that social distancing measures has meant a reduced workforce and so there simply aren’t enough people to keep up with the demand at the moment.  Hopefully, this will improve, and the backlog can be reduced but beneficiaries waiting for properties to be transferred to them are looking at 4-6 months, possibly more.   If property is to be sold, the pressure on conveyancers trying to cope with the demands of buyers frantically trying to complete before the SDLT incentive deadlines, has also created a log jam.

Introducing the above changes is a positive step, but at a time when many are struggling to cope with the impact of social distancing restrictions in the workplace caused by Covid-19, the pressures on the court system and other Government agencies is very apparent. 

If you have any questions about matters covered in this article, please contact Clare Young on 07802 618 132 or at clare.young@legalstudio.co.uk
 
2021 12 01
Clare Young
Probate Fees Hike
 
A Grant of Probate is a document issued by the Probate Registry giving executors named in a Will the legal authority to administer the estate of a deceased person.

Probate professionals and bereaved families alike suffered a collective and significant fright back in 2019 awaiting the introduction of drastic increases to the cost of obtaining a Grant of Probate – set to be as much as £20,000 based on a sliding scale.  We all then breathed a collective sigh of relief as that proposal was shelved, although many were frantically submitting applications just in case the measures were pushed through.

Another round of increases has been announced, but fortunately these are nowhere near as swingeing.

At the moment, the cost of applying for a Grant of Probate depends on whether a professional is applying - £155 - or an individual (known as a ‘personal application’) - £215. 

The new proposals set to take effect in early 2022, will mean a flat fee of £273 for all applications, regardless of the value of the estate.

The reason for the increase?  The Ministry of Justice claim that the increase is needed to cover the administrative cost of running the service, currently operating at a loss it claims.  Interestingly, the 2019 proposals were intended to generate extra revenue to help subsidise increasing costs across the court service as a whole.  At that time, the probate service wasn’t loss-making as it now appears to be!

A consultation period on the proposed increased has recently ended and so we await the outcome with interest.

If you have any questions about matters covered in this article, please contact Clare Young on 07802 618 132 or at clare.young@legalstudio.co.uk
2021 09 01
Clare Young