Question 1

Who checks that my attorney(s) are acting properly?

Accepted Answer

You should not appoint anyone that you do not trust to act as your attorney. The OPG oversees attorney(s) and deals with any complaints that arise about the way that attorney(s) are exercising their powers.

We will send guidance to your attorney(s) when we send them section 11 documents to sign so that they are aware of their duties and responsibilities under your LPA(s) before they complete their declarations in their sections of your LPAs. Useful guidance for attorney(s) can also be found on the government website (gov.uk).

If you would like to instruct Maitland Walker to prepare LPAs on your behalf, or if you require further information, please contact us.

Question 2

How is an LPA used by my attorney(s) after registration?

Accepted Answer

Your attorney(s) can use a registered LPA for financial decisions either before you lose mental capacity (with your agreement) or afterwards. Your attorney(s) can only use a registered LPA for health and welfare after you have lost mental capacity.

When your attorney(s) start using the LPA, you or they may need to provide evidence of their authority to act for you to banks, utility companies, the local authority, your doctor, care homes and other third parties. The requirements of each individual or organisation will vary. For example, some may need to see the original registered LPA while others may only want a photocopy. You or your attorney(s) should avoid sending the original registered LPA by post to a third party and offer to supply a solicitor certified copy instead. We recommend that you obtain enough solicitor certified copies for you or your attorney(s) to send to third parties. We suggest that these certified copies are safeguarded by you and that you let your attorney(s) know where they are located to save your attorney(s) applying to us for further certified copies at a later stage, which they may be charged for. We will supply you with one solicitor certified copy of each type of LPA when your LPA(s) have been registered but you can let us know if you would like us to supply you with additional certified copies.

Question 3

How can I protect my children in my will?

Accepted Answer

Parents will likely wish to include the appointment of a guardian or guardians in their wills, in event of them both dying before their children reach 18. Appointing guardians you approve of and trust to take care of your children will give you peace of mind..

Question 4

What can I do to protect an inheritance for a vulnerable person?

Accepted Answer

Parents and families of children with a vulnerability, such as a physical, mental or learning disability or an addiction, may have concerns about that child’s future and how they will cope when immediate family are no longer around.
If you are thinking of leaving an inheritance to a vulnerable person it is sensible to get legal advice about the impact this inheritance may have. Will the beneficiary be able to manage the inheritance? Will it make them more vulnerable to the attentions of a third party putting them at risk of financial abuse? Will it affect the state benefits they receive? Even a small lump sum inheritance can affect entitlement to benefits.
It is possible for an inheritance to be left in a trust in your will, under the terms of which the vulnerable person can benefit. It is advisable that the trust is administered by responsible and trusted trustees, which can be family members, friends or professionals chosen by you. The types of trust that we can advise on to help protect assets for vulnerable people are:
• discretionary trusts
• disabled person’s or vulnerable person’s trusts
• bereaved minor’s trusts
• age 18-25 trusts

Question 5

How can we help?

Accepted Answer

We are experienced in advising vulnerable or older clients, their families or support network on various aspects.   For example:
• making a will
• estate planning
• making powers of attorney
• applying to the Court of Protection for deputyship orders or other orders concerning financial and property matters
• applying to the Court of Protection in relation to health, care and welfare matters
• advising on safeguarding concerns
• providing advice to attorneys or deputies
• assisting with day-to-day financial affairs or specific financial affairs
• creating and administering personal injury trusts and disabled person’s or vulnerable person’s trusts
• advising on care and nursing fees (either at home or in a residential setting
We can also provide advice about protecting vulnerable people.
Parents and families of children with a vulnerability, such as a physical, mental or learning disability or an addiction, may have concerns about that child’s future and how they will cope when immediate family are no longer around.
If you are thinking of leaving an inheritance to a vulnerable person it is sensible to get legal advice about the impact this inheritance may have. Will the beneficiary be able to manage the inheritance? Will it make them more vulnerable to the attentions of a third party putting them at risk of financial abuse? Will it affect the state benefits they receive? Even a small lump sum inheritance can affect entitlement to benefits.
It is possible for an inheritance to be left in a trust in your will, under the terms of which the vulnerable person can benefit. It is advisable that the trust is administered by responsible and trusted trustees, which can be family members, friends or professionals chosen by you. The types of trust that we can advise on to help protect assets for vulnerable people are:
• discretionary trusts
• disabled person’s or vulnerable person’s trusts
• bereaved minor’s trusts
• age 18-25 trusts

We provide specialist clear advice to suit your needs. Our wills are accompanied by a commentaries, which explain the terms and general taxation implications of the will and any associated trusts. We can prepare ancillary documentation such as a letter of wishes which provides guidance to your trustees and can include matters you would like them to consider in administering the trust, for example, how you would like them to use the income and capital of the trust for the vulnerable beneficiary, specific details about the needs of the vulnerable beneficiary and how you envisage the trustees protecting trust assets for the vulnerable beneficiary.
Appointing guardians in your will
Parents will likely wish to include the appointment of a guardian or guardians in their wills, in event of them both dying before their children reach 18. Appointing guardians you approve of and trust to take care of your children will give you peace of mind..
Guardians will take over the welfare and responsibility of a child if there is no one left with parental responsibility for the child. They can be appointed in a written, signed and dated statement, but are more commonly appointed in a will.
If there is no surviving parent with parental responsibility and no appointment of a guardian has been made, the child will become the responsibility of the court and the court will decide on who will become the guardian or guardians.
Following the deaths of both parents, it is often the case that the estate of the second to die is held on trust for the children. We can provide you with advice about how to leave your estate to benefit your children until you think they will be old enough to sensibly manage it themselves. We will discuss your requirements and the trusts you can incorporate in your wills (such as bare trusts, age 18-25 trusts and bereaved minors trusts). Before the children become entitled to capital, the trustees usually have statutory or express powers to apply the income and capital of the estate for the benefit of the children. These powers commonly allow the trustees to pay a child's expenses (such as maintenance and school fees) directly to the child or to pay funds to a guardian to use for the child's benefit.
We can also provide advice relating to your will and guardianship if your relationship breaks down, for example if you separate, divorce or dissolve your civil partnership.

Question 6

Vulnerability and dementia

Accepted Answer

Each person is unique and will experience difficulties in their own way, for example, how fast dementia progresses, the type of dementia they have, the support and stimulation they receive and the treatment they receive.

Although dementia is progressive, so that symptoms will gradually get worse over time, people with dementia can live well and make decisions with support

Question 7

What is a vulnerable person?

Accepted Answer

When someone is unable to make a decision, the term “mental incapacity” may be used. In legal transactions lawyers will focus on whether someone has legal capacity to enter into the transaction.

A person who lacks mental capacity may be a vulnerable person, but it does not follow that a vulnerable person lacks mental capacity. A person who is vulnerable may be in need of extra support. They may also be unable to take care of themselves or protect themselves from harm.

A vulnerable person is someone who, because of their circumstances, may be at an increased risk of harm. There are many reasons a person may find they are more vulnerable, this could be due to a disability, illness, age or the circumstances they are in such as experiencing a bereavement, social isolation or poor education.

4 key drivers of vulnerability are:

• health – illnesses or general health conditions that affect the ability to carry out day-to day tasks.
• life events – such as bereavement, job loss or relationship breakdown
• resilience – low ability to withstand financial or emotional shocks
• capability – low knowledge of financial matters or low confidence in managing money. Low capability in other relevant areas, e.g. literacy or digital skills.

Someone’s vulnerability can also be caused by a diagnosed condition such as dementia, learning disabilities, mental health problems or an acquired brain injury.

Question 8

How does appointing a professional attorney work in practice?

Accepted Answer

When the partners of the firm are appointed as your attorneys we are led by you as to how much assistance and involvement you require from us.

Our role generally develops organically depending on the support you require.  We will communicate with you carefully to ascertain your needs and we will be transparent with you about the costs implications of how you would like us to act.  Our contact can be a regular meeting at your home if required, or a telephone or video meeting if you prefer.  Our role can include the following:

• assisting you with post you receive
• setting up standing orders and direct debit payments direct from your bank account
• ensuring that your assets are managed appropriately and in your best interests
• ensuring that are receiving the state benefits and pensions etc that you are entitled to and, where necessary, applying for these on your behalf
• liaising with your accountant and overseeing the completion of your annual tax returns
• liaising with financial advisors to provide investment advice as we are not regulated to provide investment advice
• liaising with other experts such as valuers
• if you decide that you need to move into residential care, facilitating and supporting you with this move, and the sale of your property if this is required

If you lose capacity to make decisions yourself we will make decisions relating to your property and financial affairs. This will include ensuring your outgoings are paid, inspecting your bank statements and taking investment advice to plan and structure your finances to meet your needs and best interests.

Question 9

What are the costs involved in appointing a professional attorney?

Accepted Answer

The LPA we prepare for you will contain a mandatory charging clause.

If you would like to appoint the partners as your professional attorneys, we will be happy to discuss this option with you.  We will advise you as to how this arrangement will work in practice and our likely fees.  Your matter would be managed on behalf of the partners by a specialist lawyer.

Our fees will be based on your circumstances and will be based on the amount of time spent.  Our standard hourly charge rate will apply.  Generally, we advise that the value of your net estate should be at least £500,000 to make it financially viable for you to afford the services of professional attorneys.  From experience, we have found that for simple matters, the approximate annual costs of assisting with the management of property and finances are £6,000 plus VAT.

If you are considering this option, you may wish to include additional requirements or preferences in your LPA e.g. to provide copies of our invoices and accounts to a third party or to consult with a third party for important financial decisions such as selling your home.  These stipulations must be workable and they may incur further costs due to the time that it will take us to consult and correspond with the third party.

We will provide your attorneys with updates of our estimated fees for acting for you and we raise regular invoices.  This information is shared with you, if you have mental capacity or can be shared with the executors or beneficiaries under the terms of your will or the nominated third party, if you lack mental capacity.

Question 10

Why should I consider appointing a professional attorney?

Accepted Answer

In some circumstances,  it may be inappropriate for family members to be your attorneys.  It may be the case that you have no close family or support network. If a member of your family or support network have current or previous bankruptcy issues, they may be legally unable to act, or it may be inappropriate for them to act as an attorney.

Being an attorney requires specific skills and time to act in your best interests, which your family members or other support network may not always have.  You may also have a difficult or complex family dynamic, for example, family disputes or breakdowns of trust.

In these circumstances, you may wish to consider appointing professional attorneys.

If you choose to appoint professional attorneys it is sensible to ensure they are professionally regulated, insured and specialists in this area of the law.

At Maitland Walker we are pleased to offer you our professional attorneys service.  However, we can only offer this service for your property and financial affairs (and not for your health and care matters).   Due to the related costs, it will generally also be inappropriate for us to act for you if you have a low value estate.

Question 11

How do I set up a trust for jointly owned property?

Accepted Answer

For more information about declarations of trust for jointly held property please click here

Question 12

What is trust registration and do I need to register my trust?

Accepted Answer

For more information on trust registration and the trust registration scheme please click here

Question 13

How do I set up a Trust?

Accepted Answer

There are a lot of factors to consider when setting up a trust and it is important to take specialist advice.  You will need to think carefully about who will be the trustees, how much control you want them to have and who you wish to benefit from the trust including when and how much they should benefit.  Trusts carry tax consequences and it is important that you take careful advice about the tax consequences before you set up a trust.    Whilst trusts can be a very useful estate planning tool, if they are not set up carefully, they can have unintended tax consequences.

Once you have decided to set up a trust and you have identified your trustees, your beneficiaries and what type of trust you require, you will need to identify what assets or funds you will transfer to the trust at the outset (the 'initial fund').  Normally, trusts are set up so that more assets can be added in the future (although, again, professional advice should always be sought before adding further trust assets due to the potential for unforeseen tax consequences).

A trust is set up by executing a trust deed and transferring the initial fund to the trustees.   Ideally, the initial fund will be transferred to the trustees at the same time as the trust deed is signed.  How assets are effectively transferred will depend upon the nature of the assets and it is recommended that professional assistance is sought.

Question 14

What types of trust are there?

Accepted Answer

If you are thinking about trusts, you need to be aware of the different types of trust which exist so that the right trust is set up for you and those you wish to benefit. Trusts can be divided into several broad types. These can be briefly summarised as; Discretionary Trusts A discretionary trust gives your trustees discretion to benefit a defined group of beneficiaries. The power to add beneficiaries to this group is often included in the trust. As a beneficiary cannot benefit from the trust without the trustees deciding whether to benefit them and to what extent, this type of trust is good at protecting a beneficiary who might make bad decisions for themselves. This type of trust is also suitable if you are unsure exactly who you might want to benefit from the trust or where you wish to allow maximum flexibility for tax planning reasons. Disabled Persons Trusts These are based upon a discretionary trust model as set out above but are specifically designed to benefit the disabled person. Since this trusts give the trustees discretion as to when to benefit the disabled person rather than giving the disabled person an absolute right to the trust assets, the disabled person's entitlement to means-tested benefits is preserved. Life Interest Trusts These grant a beneficiary the right to income from trust assets (or the right to use the trust asset) but do not grant them a right to the capital value of the asset, although the trustees are commonly given a discretion to forward capital to the beneficiary if they consider it necessary. These types of trust are often seen in wills where there is a second marriage or partnership and a person wishes to provide for their spouse/ partner whilst ultimately ensuring that the asset passes to their children (often the family home). Bare Trusts These are simple trusts, where a person holds an asset on behalf of another person until that person reaches the age of 18 and who can then take over management of the asset themselves. The beneficiaries of these trusts have an absolute right to the trust asset which passes to them as soon as they reach the required age. This type of trust is most commonly used to hold assets (often property) for minors until they come of age.

Question 15

What are trusts used for?

Accepted Answer

Trusts are often used for tax planning reasons, as well as to protect assets held for young people or vulnerable adults.

Trusts can also protect assets that are to be used to help someone who is in receipt of means-tested benefits, without affecting their right to those benefits.  They can also provide protection for someone who you would like to benefit from an asset, but who (for whatever reason) may not be able to deal with the management that asset for themselves.

Trusts are an important part of estate planning and are often included in wills, especially when second marriages/ civil partnerships or blended families are involved.

Question 16

What is a trust?

Accepted Answer

In a nutshell, a trust exists where an asset is held legally by one or more person(s) (called trustees), for the benefit of someone else (the beneficiary or beneficiaries).  The trustee cannot benefit from that asset themselves but they are responsible for looking after it for the beneficiary.

There are a number of different types of trust and reasons for setting up a trust.

Question 17

How much will my sale or purchase cost?

Accepted Answer

An indication of fees for purchases are listed here: Purchase - indication of costs Property sale costs are shown here: Sale - indication of costs

Question 18

Who will do the work for me?

Accepted Answer

We appreciate that property transactions can be stressful, which is why we go beyond other law firms to ensure our clients have easy and direct access to the person handling the transaction. The following link will take you to our legal advisers who deal with residential property transactions: [sz-button title="Meet the Team" url=""]

One of these advisers will be allocated to your transaction and will liaise with you directly.

Question 19

What is a collective action?

Accepted Answer

The potential for a collective action arises when a wrong causes loss to a group of people in a similar way. UK rules provide for various ways in which collective actions can be structured from simply taking a test case forward and asking the court to manage the litigation appropriately, bringing a representative action or under a group litigation order. Such claims are dealt with on an opt-in basis, i.e. claimants must elect to join the action in order to be considered a member of the class and share in any damages recovered. Following the introduction of section 47B of the Competition Act 1998, consumers and businesses can bring private actions for damages suffered as a result of infringement of UK competition law on an opt-out basis, i.e. on behalf of an entire class of claimants (except for those that have expressly opted-out) without the need to identify every claimant.

Question 20

Sample question. What is Lorem Ipsum?

Accepted Answer

Lorem Ipsum is simply dummy text of the printing and typesetting industry. Lorem Ipsum has been the industry's standard dummy text ever since the 1500s, when an unknown printer took a galley of type and scrambled it to make a type specimen book. It has survived not only five centuries, but also the leap into electronic typesetting, remaining essentially unchanged. It was popularised in the 1960s with the release of Letraset sheets containing Lorem Ipsum passages, and more recently with desktop publishing software like Aldus PageMaker including versions of Lorem Ipsum.

Question 21

Sample question. What is Lorem Ipsum?

Accepted Answer

Lorem Ipsum is simply dummy text of the printing and typesetting industry. Lorem Ipsum has been the industry's standard dummy text ever since the 1500s, when an unknown printer took a galley of type and scrambled it to make a type specimen book. It has survived not only five centuries, but also the leap into electronic typesetting, remaining essentially unchanged. It was popularised in the 1960s with the release of Letraset sheets containing Lorem Ipsum passages, and more recently with desktop publishing software like Aldus PageMaker including versions of Lorem Ipsum.

Question 22

Sample question. What is Lorem Ipsum?

Accepted Answer

Contrary to popular belief, Lorem Ipsum is not simply random text. It has roots in a piece of classical Latin literature from 45 BC, making it over 2000 years old. Richard McClintock, a Latin professor at Hampden-Sydney College in Virginia, looked up one of the more obscure Latin words, consectetur, from a Lorem Ipsum passage, and going through the cites of the word in classical literature, discovered the undoubtable source. Lorem Ipsum comes from sections 1.10.32 and 1.10.33 of "de Finibus Bonorum et Malorum" (The Extremes of Good and Evil) by Cicero, written in 45 BC. This book is a treatise on the theory of ethics, very popular during the Renaissance. The first line of Lorem Ipsum, "Lorem ipsum dolor sit amet..", comes from a line in section 1.10.32.

Question 23

Sample question. What is Lorem Ipsum?

Accepted Answer

Lorem Ipsum is simply dummy text of the printing and typesetting industry. Lorem Ipsum has been the industry's standard dummy text ever since the 1500s, when an unknown printer took a galley of type and scrambled it to make a type specimen book. It has survived not only five centuries, but also the leap into electronic typesetting, remaining essentially unchanged. It was popularised in the 1960s with the release of Letraset sheets containing Lorem Ipsum passages, and more recently with desktop publishing software like Aldus PageMaker including versions of Lorem Ipsum.

Question 24

How long will my matter take?

Accepted Answer

The time that it takes from taking your initial instructions to the final resolution of you matter depends largely on the stage at which your case is resolved. If a settlement is reached during pre-claim conciliation, your case is likely to take 2-3 weeks. If your claim proceeds to a Final Hearing, your case is likely to take between 3 months and a year. This is just an estimate and we will of course be able to give you a more accurate timescale once we have more information and as the matter progresses.

Question 25

What is a collective action?

Accepted Answer

The potential for a collective action arises when a wrong causes loss to a group of people in a similar way. UK rules provide for various ways in which collective actions can be structured from simply taking a test case forward and asking the court to manage the litigation appropriately, bringing a representative action or under a group litigation order. Such claims are dealt with on an opt-in basis, i.e. claimants must elect to join the action in order to be considered a member of the class and share in any damages recovered. Following the introduction of section 47B of the Competition Act 1998, consumers and businesses can bring private actions for damages suffered as a result of infringement of UK competition law on an opt-out basis, i.e. on behalf of an entire class of claimants (except for those that have expressly opted-out) without the need to identify every claimant. If you wish to discuss collective or group actions further with one of our specialist team please contact Adrian Render, Julian Maitland-Walker or Sheree-Ann Virgin.

Question 26

What do we offer?

Accepted Answer

Solicitors with excellent technical expertise and the ability to think creatively and tactically is key for claimants involved in collective actions and group redress. Our solicitors combine significant experience in group actions with an efficient strategy  and work closely with a team of specialist counsel and experts that is tailored to meet the needs of each case. Our clients benefit from our strong relationships with funding brokers, funders and ATE insurance providers.

Our experience in collective actions has grown organically from its strong EU & Competition Law and Litigation & Dispute Resolution offerings and now spans a wide range of sectors including competition law, financial services, professional negligence and investment losses. We have acted in a number of the most high profile group and collective actions and we are currently involved in bringing a number of large high-profile collective claims in the Competition Appeals Tribunal on an opt out basis under section 47B of the Competition Act 1998.

Question 27

Who will do the work for me?

Accepted Answer

David MCrum. Please view the following link to view David McCrum's profile which details his experience and qualification: https://www.maitlandwalker.com/our-lawyers/david.php.

The stages set out above are an indication and if some of the stages are not required, the fee will be reduced. You may wish to handle the claim yourself and only have our advice in relation to some of the stages. This can be arranged on your individual needs.

Question 28

How can Maitland Walker help?

Accepted Answer

We have solicitors with specialist accredited expertise in dealing with vulnerable and elderly clients. Two of our experts are fully accredited members of Solicitors for the Elderly. Our experts can help to identify what support may be required and can help with applications to the court of protection including deputyship applications.

We can help with the following;

Court of Protection applications (including deputyship applications)
Statutory wills
Estate planning relating to vulnerable people
Advice on care home fees
Lasting powers of attorney
Attorneyship services
Assistance in later life

Question 29

What protection may a vulnerable person need?

Accepted Answer

If the safety or wellbeing of a person is in question, protection will be needed to ensure that person is safeguarded from abuse or mistreatment. Abuse can happen anywhere e.g. in a residential or nursing home, workplace, day centre, the person’s own home or in the street. The person abusing could be a family member, carer, friend, neighbour or volunteer.

Abuse and mistreatment can take different forms, such as:

Physical – eg. hitting, slapping, punching, restraining.
Emotional or psychological – including threats and humiliation, being isolated, controlled and harassed.
Neglect – including being left without food, heating or personal care
Sexual – including rape and other acts to which consent has not been given
Financial – have their money stolen or misuse of funds
Discrimination – including unfair treatment because of your gender, culture, race, age, disability, background or illness

The measures required to protect a vulnerable person will depend upon that person’s personal circumstances and the circumstances of those around them – for example, less professional support may be required if the person has close family able and willing to help.

Question 30

What is a vulnerable person?

Accepted Answer

When someone is unable to make a decision, the term “incapacity” may be used. In legal transactions lawyers will consider whether someone has legal capacity to enter into the transaction.

A person who lacks mental capacity may be a vulnerable person, but it does not follow that a vulnerable person lacks mental capacity. A person who is vulnerable may be in need of extra support in some areas, but not in others. They may also be unable to take care of themselves or protect themselves from harm.

A vulnerable person is someone who, because of their circumstances, may be at an increased risk of harm. There are many reasons a person may find they are be more vulnerable than others, this could be due to disability, illness, age, a recent bereavement or social isolation.

4 key drivers of vulnerability are:

Health – illnesses or general health conditions that affect the ability to carry out day-to day tasks.
Life Events – such as bereavement, job loss or relationship breakdown
Resilience – low ability to withstand financial or emotional shocks
Capability – low knowledge of financial matters or low confidence in managing money. Low capability in other relevant areas, eg. literacy or digital skills.

Someone’s vulnerability can also be caused by a diagnosed condition such as dementia, learning disability, mental health problems or acquired brain injury. Vulnerability may be permanent or temporary.

Question 31

What happens if an employer makes an unlawful deduction?

Accepted Answer

The employee may make a claim to the Employment Tribunal within three months of the deduction, or the least in a series of deductions, but provided there is no break in that series of more than 3 months between deductions. The Tribunal may make a declaration that the employer has made an unlawful deduction and/or order that the employer to pay the sums deducted.

The Tribunal may however only consider deductions made from wages paid within the previous two years.

Question 32

Are there any exceptions to this?

Accepted Answer

Yes, a deduction is permitted where it is made in respect of:

an overpayment of wages;
a statutory purpose to a public authority such as unpaid taxes;
a contractual obligation to pay a third party such as a union subscription;
industrial action; or
a court order requiring a payment from the employee to the employer.

Question 33

Can an employer make a deduction from an employee’s wages?

Accepted Answer

An employer may not make such a deduction unless it is required or authorised by statute, authorised by the contract of employment or the worker has provided written consent to the deduction.

Question 34

Are any rights often excluded from a waiver under a settlement agreement?

Accepted Answer

Rights in respect of an occupational pension scheme and personal injury claims of which the employee is unaware are usually excluded from any waiver.

Question 35

Can an employer include a blanket waiver of all potential claims arising from the termination of an employees’ employment?

Accepted Answer

No, for a settlement agreement to validly and effectively block a claim, the claim must be specifically identified in the body of the agreement.

Question 36

What if a settlement agreement doesn’t comply with these rules?

Accepted Answer

It will be void for statutory claims such as unfair dismissal but will be valid for contractual claims such as wrongful dismissal.

Question 37

What are the essential components of a settlement agreement?

Accepted Answer

To comply with statute, a settlement agreement must:

1. be in writing;

2. relate to the specific claim being settled;

3. identify a named, relevant independent adviser from whom the employee has received advice as to the terms and effect of the agreement. In particular the employee must have received advice as to the effect on his or her ability to pursue a claim in the Tribunal;

4. state that the adviser is covered by professional indemnity insurance; and

5. state that the above conditions are satisfied.

Question 38

What is the benefit of a settlement agreement?

Accepted Answer

It limits the employee’s right to pursue a statutory employment claim (such as unfair dismissal) in the Employment Tribunal.

Question 39

Are there any terms which prevail following termination of employment?

Accepted Answer

Confidentiality clauses

There is an implied confidentiality clause which remains post-termination.

During employment, the implied duty of good faith mentioned above encompasses a wide duty of confidentiality which prohibits the disclosure of information classed as a trade secret or information which the employer regards as confidential.

Once employment has ended, the employee is under a narrower duty not to disclose information that is a trade secret or is so confidential that it requires the same protection as a trade secret. This usually includes technical information regarding manufacturing processes and high level strategic business plans.

It is still usually advisable for an employer to include an express confidentiality clause in its employees’ contracts.

Restrictive covenants

Employers may put further restrictions on their employees by the use of express terms, known as restrictive covenants. The courts look unfavourably on these terms, and in order to be enforceable they must protect a legitimate interest of the business and go no further than is reasonably necessary to protect that interest. Legitimate interests commonly include an employer’s trade connections and trade secrets.

Question 40

Are any terms implied into contracts?

Accepted Answer

Yes, terms may be implied as a result of statute, custom and practice, the officious bystander test, business efficacy and the duties of the employer/ee.

Statute

Statute implies terms relating to minimum notice, equal pay and working time.

Custom and practice

A term may be implied by virtue of the custom and practice of the workplace and/or employer, for example where an employer has given staff a bonus every Christmas for the past decade.

The officious bystander test

A term will be implied where it is so obvious that both parties would have immediately agreed to it at the outset, for example that teachers don’t need to report to school for teaching during the holidays.

The business efficacy test

A term may be implied to make a contract workable, for example a term requiring a chauffeur to hold a valid driving licence.

Duties of the employer

Duty to pay: if a contract is silent, the employee has an implied right to reasonable remuneration and can make a claim if they are paid under the minimum wage.

Duty to provide work: there may be a duty where there is work to be done, the employee is willing to do it and/or there is a need for frequent practice of skills.

Duty to take reasonable care for the employee’s health and safety: an employer must ensure the employee’s physical and mental health and safety and provide a safe system of work.

References: an employer is not obliged to give a reference but if they are to provide one, it must be true, accurate and fair.

Duties of the employee

Duty to provide personal service: an employee has a personal obligation to perform work.

Duty to work with reasonable skills, diligence and care: an employee must be reasonably competent to perform their duties with care.

Duty of good faith and confidence: the employee must be honest and must not act against the interests of the business.

The employer and employee also have a shared duty of trust and confidence.

Question 41

What's included in a statement of written particulars?

Accepted Answer

The following particulars must be provided in the same document:

name of employer and worker;
date employment commenced;
date when continuous employment began (for employees only);
scale, rate and method of calculating pay;
intervals at which remuneration is paid;
terms and conditions relating to hours of work (including the days of the week the worker is required to work, whether this may vary and if so, how they may vary);
entitlement to holidays, including public holidays and holiday pay;
any other benefits provided by the employer;
notice periods for termination;
job title or brief description of duties;
terms as to length of temporary or fixed term work;
probationary period, including any conditions and its duration;
expected place of work;
any collective agreements (entered into by the worker’s union and the employer) which directly affect the terms and conditions of the employment;
terms related to work outside the UK for a period of more than one month; and
any mandatory training and/or any training which must be paid for by the worker.

The following particulars must also be provided:

a person to whom the worker can appeal if they are dissatisfied with any disciplinary decision relating to them; and
a person to whom the worker can apply for the purpose of raising a grievance.

The following particulars must be provided, but the worker can be referred to the provisions of another document. This will typically be the staff handbook or intranet pages:

sick leave and pay;
any other paid leave;
pension provision;
any training entitlement provided by the employer; and
further information about disciplinary and grievance procedures.

If there are no particulars to be provided under any head, this fact must be stated in the written particulars.

Question 42

What terms must contracts of employment expressly include?

Accepted Answer

Employees must be provided with a statement of written particulars of employment, setting out the key pieces of information governing the employee’s employment. A contract of employment or letter of engagement will constitute a statement of written particulars.

The particulars must be provided by the date on which the employment starts at the latest, although information relating to pension provision, collective agreements, training and disciplinary and grievance procedures may be provided up to two months after employment starts.

If the written particulars change during the employee’s employment, the employer must provide them with a written statement of changes within one month.

Question 43

What is an express term?

Accepted Answer

An oral or written provision stipulating the key elements of a contract.

Question 44

Can I be dismissed for taking industrial action?

Accepted Answer

No, provided the action is organised according to very specific statutory rules regarding the ballot, and the notice to be given to the employer regarding the action being taken.

If an employee is dismissed for taking industrial action within 12 weeks of the action, they may claim unfair dismissal.

Question 45

What steps can the employer take in response to industrial action?

Accepted Answer

Employers don’t usually pay their employees during periods of industrial action and can sue for breach of contract, though this is rare. Employers may also reduce an employee’s length of service which is important when working out pensions and statutory redundancy pay.

Question 46

Can an employer force employees to work during industrial action?

Accepted Answer

No, employees have the right to take industrial action.

Question 47

What obligations transfer to the new employer?

Accepted Answer

The new employer will acquire all rights and liabilities associated with the employees and their contracts apart from criminal liabilities and certain rights and liabilities associated with occupational pension schemes.

Question 48

What obligations does the former employer have?

Accepted Answer

There is an obligation to ensure that a proper consultation process is held with employees as to the fact of, reasons for and consequences of the transaction. A failure to do so can result in large financial penalties for both the old and new employers of up to 13 weeks’ pay per employee.

Question 49

What is the effect of TUPE?

Accepted Answer

On the transfer of a business the contracts of employment of the employees employed within the business are automatically transferred to the new owner provided that:

the business is situated in the UK;
the business retains its identity after the transfer; and
the relevant employees are employed immediately before the transfer.

Employees who do not want to be transferred will have their employment terminated, but it won’t amount to a dismissal.

An employer may not vary any terms of its employees’ contracts where the sole reason is the transfer.

Question 50

What is TUPE?

Accepted Answer

TUPE protects employees in the event of a relevant transfer. There are two types of relevant transfer under TUPE:

a business transfer; and
a service provision charge.

Question 51

Can I share leave with my partner?

Accepted Answer

Employees can share up to 50 weeks of leave and 37 weeks of pay between them in the first year after the birth of their child, under complex legislation which it would take too long to repeat here! Contact the firm for more detail.

Question 52

Are there any eligibility criteria?

Accepted Answer

For paternity leave, employees must give the correct notice and have been continuously employed by their employer for at least 26 weeks up to any day in the 15th week before the due date.

For paternity pay Employees must be employed up to the date of birth, earn at least a minimum weekly amount, give the correct notice and have been continuously employed for the same duration as stated above.

Question 53

What paternity leave and pay am I entitled to?

Accepted Answer

Employees may take either one or two weeks within 56 days of the birth. The statutory weekly rate of Paternity Pay is the lower of the same statutory minimum amount as for maternity pay, or 90% of their average weekly earnings.

Question 54

Are there any eligibility criteria?

Accepted Answer

Employees must earn at least a certain amount each week, give notice and proof of pregnancy and have worked for their employer for at least 26 weeks by the end of the 15th week before the due date.

Question 55

What will I be paid?

Accepted Answer

The statutory minimum is 90% of earnings for the first 6 weeks and the lower of a statutory minimum amount, which increases each year, or 90% of the average weekly earnings for the next 33 weeks.

Question 56

What maternity leave am I entitled to?

Accepted Answer

Employees must take 2 weeks’ leave after your baby is born, but may take up to 52 weeks.

Question 57

Am I entitled to leave to look after my child?

Accepted Answer

Employees who have been working for their employer for over a year may take up to 18 weeks’ unpaid parental leave to look after their child’s welfare, such as spending more time with them, looking at schools, sorting out child care arrangements and visiting relatives.

Employees must give 21 days’ notice.

Question 58

Am I entitled to time off for issues which don’t involve dependants?

Accepted Answer

No, but employers may allow compassionate leave which can be paid or unpaid. The contract of employment, company handbook or intranet will contain the relevant details.

Question 59

Are there any exceptions to the rule?

Accepted Answer

If an employee knew about a situation before it arises, they will not be entitled to the leave.

Question 60

Am I entitled to pay during these periods?

Accepted Answer

An employer is not obliged to pay you, but they may. The contract of employment, company handbook or intranet site will likely contain the relevant information.

Question 61

Am I entitled to time off to deal with an emergency involving a dependant?

Accepted Answer

Employees are entitled to a reasonable amount of time off to deal with unexpected serious issues involving dependants, which will depend on the situation. There are no limits on how many times you can take such time off.

Question 62

How can I enforce my rights?

Accepted Answer

The above limits are enforced by the Health and Safety Executive and local authorities. An employee may complain to an Employment Tribunal about an employer’s failure to allow an employee to exercise their rights under the Working Time Regulations within three months of the alleged failure. Remedies include compensation and a declaration of rights.

Question 63

What rights do the regulations confer?

Accepted Answer

48-hour week

Each worker should work a maximum of 48 hours per week on average, calculated by reference to a 17 week period of work. ‘Working time’ is defined as when the employee is working, at the employer’s disposal and carrying out their duties.

Workers may opt out of the 48-hour working week, but only voluntarily, and may opt back in by written notice.

Annual leave

All workers are entitled to 28 days of paid annual leave. Bank holidays are included unless the contract of employment says otherwise.

Workers must be paid at a rate of a week’s pay for each week of leave.

An employee may only roll over leave into the next holiday year in the following circumstances:

it is permitted by their employer and is over and above their 28 day statutory entitlement; or
the employee hasn’t taken all of their annual leave because they were on sick leave.

Rest periods

Daily rest: Adult workers are entitled to 11 consecutive hours’ rest in each 24 hour period.

Weekly rest: Adult workers are entitled to a rest period of 24 hours in each seven day period.

Rest breaks: After six hours at work, a worker is entitled to a rest break no shorter than 20 minutes.

Night workers: A night worker is an individual who works at least three hours during night time on the majority of days on which they work. Under the Regulations, night time means a period of seven hours which includes midnight to 5am, but employers may stipulate differently. Night workers must not work more than an average of eight hours in every 24 hours during a 17 week period.

Exceptions: the above rules don’t apply to workers in certain industries. These include hospital, airport and prison workers and those involved in gas, water and electricity production.

Question 64

Who do the working time regulations apply to?

Accepted Answer

Those who work under a contract of employment or any other contract to personally provide work to another party. This includes employees, agency workers, freelancers but not the self-employed.

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