A Compromise Agreement is a legally binding agreement either during or following the termination of your employment, and which brings your employment to an end. It is recognised by law. It usually provides for a severance payment, in return for which you agree not to pursue any claim or grievance you may have in an Employment Tribunal.

Why am I being offered a Compromise Agreement?

A Compromise Agreement may be offered by your employer for a number of reasons, i.e. you may have an unresolved dispute with your employer, you may have raised a grievance, be medically unfit to continue working or may not want to return to work at the end of Maternity Leave.

Employers tend to offer such an agreement to ensure there is some certainty and closure in relation to the employment, as opposed to a possible tribunal claim, where the outcome can be risky.

What is contained in a Compromise Agreement?

Each agreement will vary depending on specific circumstances however there are certain matters that most agreements cover-

• amount of compensation to be paid
• confidential matters, such as trade secrets and the terms of the agreement
• any assurances given by the employer and/or employee
• settlement of any claims which the employer may have against the employee
• mutual agreement not to make derogatory comment.

Why should an employee consider signing a Compromise Agreement?

The employee generally receives an enhanced ex gratia or compensatory amount in addition to being paid any contractual amounts due

Under English Law, the Employer is usually favoured in Tribunal Claims and therefore the risk of going to Tribunal can be high

There are generally no legal costs recoverable from the Opponent even if you are successful at Tribunal.

The employee will generally not be required to work his or her notice period, and will be paid all sums, including contractual notice and ex gratia amount (tax free if under £30,000) upfront

What are the risks of signing a Compromise Agreement?

• You may be agreeing to terminate your employment for a much lower amount of compensation than you would be entitled to if you were successful at Tribunal
• You may be required to enter into new contractual terms which will affect your ability to work in the future, such as new post-termination restrictions;
• You may be signing away important contractual benefits such as your right to Permanent Health Insurance or a final salary pension.

References as part of the Compromise Agreement

When negotiating a compromise agreement you can agree the content of the reference your employer will give to potential future employers.

Some employers will limit the reference to providing some basic facts of employment, such as the job title, start date, termination date. However, you can negotiate with your employers to provide a more detailed reference as part of the Compromise Agreement.

What are the requirements for a valid Compromise Agreement?

The following requirements must be met in order for the document to be valid –

• it must be in writing
• it must identify the adviser
• the adviser must carry professional indemnity insurance
• the employee must receive legal advice from a qualified independent adviser, which includes a compromise agreement solicitor, regarding the terms of the proposed agreement as well as its effect on the employee’s ability to make a complaint to an Employment Tribunal

Why do I need a Compromise Agreement Solicitor?

The main reason for instructing a Solicitor is because you must receive legal advice in order for the compromise agreement to be valid. The solicitor must sign the agreement to certify that the advice has been given.

A compromise agreement solicitor will explain the contents of the agreement to you in plain English, and make sure that you fully understand the meaning of each term.

A solicitor can also assist in negotiating the new terms if you are dissatisfied with any part of the agreement. However, once you sign the agreement, it is final, and you no longer have a right to make a claim to a tribunal.

A compromise agreement solicitor will advise you on whether the agreement offers you suitable protection and whether the amount of compensation being offered is adequate.

One way a solicitor can assist you is to help you identify any potential claims you may have against your employer, such as discrimination or unfair dismissal. A solicitor can assess the likely value of such claims in order to determine whether signing or pursuing a legal claim is likely to be more beneficial.

Who pays for my legal advice?

There is no legal requirement for an employer to pay your legal fees in taking advice on a compromise agreement however in practice employers will normally make a contribution towards some or all of your legal costs if you sign off on the Agreement.

What if my employer does not pay me?

If your employer does not comply with the terms of the compromise agreement, you can make a claim for breach of contract, if you have suffered loss as a result of the breach.

Our team of experts can  assist with your all aspects of your employment matter. Call us now on 02031918080 or email Kalilou@ftchambers.com

The post What is a Compromise Agreement? appeared first on FT Solicitors.

The relevant time, therefore, is the period between the date of refusal and the date of hearing. Statute prohibits this practice through s.85(5) of the Nationality, Immigration and Asylum Act 2002 although Tribunals would still often fall into the trap of considering evidence not before the Home Office at the time of refusal. Quaidoo (new matter: new procedure/process) [2018] UKUT 87 brings into play the issue of ‘consent’ making such proceedings significantly more convoluted.  It is to be noted that Quaidoo follows relevant previous 2017 judgments.

Under Quaidoo an appellant in the First-tier may raise a ‘new matter’. The classical paradigm of a new matter in the relevant Home Office policy is a human rights claim where between refusal and date of hearing the appellant has given birth to a British child. Caselaw restricts judges from considering the new matter unless the Secretary of State consents to the new matter being considered. The Secretary of State hence has the option of either refusing or granting consent through his counsel or presenting officer. As the law stands there is no leeway to argue against refusal of consent in appeal proceedings but the option open to the appellant, if meritorious, is to judicially review the said refusal of consent.

If consent is refused by the Secretary of State, the appeal judge must ignore the new matter and proceed to assess only what was before the decision maker at the time of refusal. In practice, this would be easier said than done. The judge has no power to intervene in matters of consent. Experience shows that while arguing against the Secretary of State’s refusal of consent is futile, challenging whether a matter is indeed ‘new’ may carry some merit for the appellant especially in cases where the issue that has arisen is not clear-cut. There is good reason behind this suggestion: a First-tier judge decides whether a matter is new, not the Secretary of State.

It cannot, of course, be ignored that issues of consent at the time of writing are causing significant strains to all three partakers: the Courts, the appellants and the Home Office itself. If an appellant, as an illustration, wishes to raise a new matter at the hearing but the respondent is unrepresented, the judge cannot ignore the matter of consent and is obliged to adjourn the hearing for a later date. This by implication worsens the Department’s bureaucracy, lengthens litigation and raises costs for both sides including the taxpayer, causing us to wonder whether the judgment in Quaidoo has in fact taken into account the overriding objective.

For further information, please contact FT Solicitors on 02031918080 

The post Immigration appeals: ‘New matter’ or new problem? appeared first on FT Solicitors.

Depending on the level of investment, an applicant can be fast-tracked to indefinite leave to remain in the UK.
Tier 1 investor visas, which were introduced in 2008 for those willing to invest millions of pounds into the country, will be suspended from midnight on Friday 7th December 2018.
Investments could be made of £2million, £5million or £10million in Government bonds or British businesses in return for permission to apply for permanent residence in five, three or two years respectively.
But the Home Office said the scheme would be suspended amid ongoing efforts to tackle serious organised crime.
Applicants will also have to prove they have controlled their £2 million investment for two years.
On Wednesday, immigration minister Caroline Nokes said the UK hoped to block foreign investors from abusing the system by bringing in the new measures.
The scheme only previously required that applicants had a UK bank account and were of “good character”.
Under the new rules, applicants will have to undergo audits of their financial and business interests to prove they have not laundered money.
These audits will have to be carried out by regulated UK auditing firms which have no involvement with any qualifying investments or the visa application.

The post Home Office Crackdown On Money Laundering Through The Investor Visa Scheme appeared first on FT Solicitors.

On 26 July 2017, the Supreme Court in the case of R (Unison) v Lord Chancellor (2017), found that court fees in regards to proceedings at the Employment Tribunal and at the Employment  Appeal Tribunal (both together known as the “Tribunals”) are unlawful and prevent access to justice.

This means that all fees for these proceedings cease to be payable and any fees paid in the past to the Tribunals must be reimbursed by the government.

In this case, Unison sought a judicial review of the fees that were originally imposed by the Tribunals in 2013 on the grounds that these fees unlawfully prevented or restricted access to justice. The Supreme Court decided that there was a real risk that persons will effectively be prevented from having access to justice; and the degree of intrusion is greater than is justified by the objectives which the measure is intended to serve in regards to the fees imposed by the Tribunals.

It was established that the fees were, in their current form, not set at a level that everyone could afford, with some fees for the Tribunals being up to £1,600. The Supreme Court concluded that a significant amount of people would have otherwise brought claims to the Tribunals, but for the unaffordability of the fees.

Interestingly, the Supreme Court also found that these fees breached the European Union’s principles of effectiveness and effective judicial protection. It was concluded the fees imposed disproportionate restrictions for the purposes of European Union Law which effectively means the fees were in breach of both United Kingdom and European Union Law.

What Next?

The Tribunals have confirmed that fees in the amount of £32 Million will be reimbursed to claimants. On 15 November 2017, the full scheme of refunding individuals for their fees opened up following a four week opening scheme. As well as being refunded their original fee, successful applications from claimants to the opening scheme will also be paid interest of 0.5% calculated from the date of the original payment up until the refund date.

Logic dictates that the number of claims in the Tribunals now and in the future, will increase due to the fees barrier being lifted for claimants. This could mean the Tribunals become overburdened with proceedings and the government is forced to create new legislation where fees are met by employers. In this period of economic uncertainty and potential job losses, the government will be keeping a close eye on the amount of claimants in the Tribunals in the coming years in order to strike a balance between maintaining the Supreme Court’s judgement in R (Unison) v Lord Chancellor (2017) and the Tribunals becoming overburdened with claimants.

We have a team of specialists who can provide guidance and advice on reclaiming Employment Tribunal and the Employment Appeals Tribunal fees. To speak to a member of our employment team simply get in touch with us by using the contact form on this page or calling on 02031918080

The post Employment Tribunal Fees following R (Unison) v Lord Chancellor (2017) appeared first on FT Solicitors.

It is important that you choose the right structure when you start a business. There are different options and we, as solicitors, can give you an overview of the regulations, explain the requirements for setting up your business and advise on the suitable structure depending on your own circumstances.

There are 3 main structures:

– Sole traders: setting up as a sole trader is easy and simple, but you will be personally responsible for your business’s debts. You will also have some accounting responsibilities.

– Partnerships: A partnership is an option when 2 or more people decide to run a business together. You will share responsibility for the business’s debts. You also have accounting responsibilities.

– Limited companies: If you form a limited company, its finances are separate from your personal finances. On the other hand, you will have more reporting and management responsibilities. Whilst you can set up a company yourself, it is often recommended to get help from a professional, i.e. a solicitor or an accountant.

Sole trader: key features

The key features of a business operating as a sole trader include:

• No separate legal personality. There is no legal separation between the business and the affairs of a sole trader. A business operating as a sole trader cannot own assets in its own right, or grant security over them.
• Unlimited liability of participators. A sole trader is personally liable, without limit, for all of the debts and other liabilities of the business.
• Number of participators. There can only be one owner/manager in a business that is operated as a sole trader.
• No separation between management and ownership interest. There is no separation between the management and ownership of a sole trader business. The sole trader owns all the assets of the business personally and has full control over running the business. The sole trader makes all the decisions affecting the business.
• Minimal formation formalities and filing requirements. There are no formation formalities or filing requirements for setting up a sole trader business.
• Constitutional documents. There is no need for a business operating as a sole trader to adopt constitutional documents.
• Ongoing administration and filing requirements. A sole trader business is not required to file accounts or other documents with Companies House.

General partnership: key features

The key features of a business operating as a general partnership include:

• No legal personality. A general partnership does not have a legal personality separate from its partners. A general partnership cannot own assets in its own right, nor can it grant security over them.
• Unlimited liability of participators. Partners are jointly liable for the debts and obligations of the partnership business. Partners are also jointly and severally liable for the wrongful acts or omissions of their fellow partners in the ordinary course of the partnership business, or with the authority of the other partners.
• Number of participators. There must to be at least two participators in the business for a partnership to exist. There is no statutory upper limit on the number of partners in a general partnership. A partner in a partnership can be a company as well as an individual.
• No separation between management and ownership. The default position is that every partner has a right to participate in the management of a general partnership and participate equally in the partnership assets and profits.
• Minimal formation formalities and filing requirements. No legal formalities are required to set up a partnership and it is not necessary to register a general partnership with Companies House. Partners will, however, usually regulate their affairs by entering into a formal partnership agreement.
• Constitutional documents. There is no need for a business operating as a general partnership to adopt constitutional documents. The partners are not required to enter into a formal agreement to regulate the conduct of the business and their relationship as partners, although in practice most partnerships will do so.
• Ongoing administration and filing requirements. A general partnership is not required to file accounts or other documents with Companies House.

Private company limited by shares

A private company limited by shares differs in a number of respects from a public company. The key differences include:

• No minimum issued share capital. The nominal value of a private limited company does not have to exceed a specified amount. So, for example, it is possible (and common in practice) to incorporate a private company with a share capital comprising a single share with a low nominal value.
• No restriction on amount paid up on shares on issue. Unless its articles of association provide otherwise, a private company can issue shares on terms that the subscription price for the shares will be partly paid or nil paid on issue.
• Shares cannot be offered to the public. A private company is prohibited from offering its shares to the public.
• Officers. A private limited company must have at least one director. A private company is not required to have a company secretary, although it may choose to do so.
• Company name. Subject to certain statutory exceptions, the company’s name must include the word “limited” or “ltd”.
• Shareholder meetings and decisions. Provided it is not a traded company, a private company is not required to hold annual general meetings unless its articles of association provide otherwise. Decisions of the shareholders in a private company can be taken by way of a written resolution.
• Capital reductions, redemptions and share buybacks. Private companies have more flexibility in terms of procedure and source of funds for carrying out a reduction of capital, redemption of shares or share buyback. A private company can provide financial assistance for the purchase of its own shares.

We have a team of specialists who can provide guidance and advice on the structures available to your business and the best options in relation to tax and legal requirements .   To speak to a member of our business team simply get in touch with us by using the contact form on this page, calling or emailing admin@ftchambers.com

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The experience of being dismissed by your employer, or of leaving them after a workplace dispute, is always unpleasant. But if this is what has happened to you, you may be able to take legal action against your employer and seek compensation.

Any employee who has the qualifying period of service has the right not to be subject to an unfair dismissal. If the employee is dismissed, an employer must demonstrate that the reason for dismissal falls into one of the categories set out in the Employment Rights Act 1996.

These categories are as follows:

• The employee lacked capability or qualification;
• The dismissal was a consequence of misconduct by the employee (such as dishonesty, poor attendance, failure to follow instructions, and which can amount to gross misconduct);
• There is a genuine situation of redundancy;
• The continuation of employment would contravene a statutory provision;
• Some other substantial reason -i.e. any reason that does not fall within the above reasons;

It is incumbent on the employer to prove one or more of the above reasons for a fair dismissal, failing which the dismissal will constitute an unfair dismissal. In the event that the employer is able to prove that the dismissal falls within one of the categories above the Employment Tribunal retains the discretion to decide “in accordance with equity and the substantial merits of the case” whether the dismissal was fair. The Tribunal will reach a determination on the fairness of the dismissal based on whether the dismissal was within the “range of reasonable responses” available to that employer in all the circumstances.

Qualifying period of employment

In order to meet the qualifying period of employment an employee must have been continuously employed for at least 23 months and 3 weeks  and not have been served with notice before completing 2 years of employment.

There are also some limited exceptions where the continuous period does not apply at all, so that you can bring a claim for unfair dismissal without having worked for any minimum time. This is known as “automatic unfair dismissal” (see below).

Following the correct process

If the employer claims to have dismissed an employee for a justified reason, the dismissal will still be unfair if the employer has not followed the correct process. An example would be where your employer has not followed a proper consultation or selection process in a redundancy situation. For dismissals based on misconduct, or performance, the process that your employer should follow is largely governed by the ACAS Code of Practice , which provides that there should be sufficient investigations, evidence, warnings (in most cases) and the right to be accompanied at meetings.

Automatic unfair dismissal

There are some reasons for dismissal that are automatically unfair. If you are dismissed for any of these reasons then you should be able to make a claim to an Industrial Tribunal for unfair dismissal.

If your employer dismisses you for exercising or trying to exercise one of your statutory (legal) employment rights you will have been automatically unfairly dismissed.

An employee’s statutory employment rights include a right to:

• A written statement of employment particular;
• An itemised pay statement;
• A minimum notice period;
• Maternity, paternity or adoption leave;
• Time off for antenatal care;
• Parental leave;
• Time off for dependants;
• The right to request flexible working arrangements;
• Not to be discriminated against because of your gender, race, disability, religion or belief, political opinion, sexual orientation or age;
• Guaranteed pay when work is not available for you;
• Time off for public duties (for example, jury service);
• Protection against unlawful deductions from wages;
• Remuneration during suspension on medical grounds;
• Refusing to do shop or betting work on a Sunday;
• Making a public interest disclosure or ‘blowing the whistle’;
• Time off to look for work or make arrangements for training prior to redundancy;
• Time off for study or training;

Dismissal before, during or after business transfers

If the business you work for is being transferred to another company or taken over, you may be protected under the ‘Transfer of Undertakings’ (TUPE) protections.

If you are protected and you are dismissed by either your old or new employer because of the transfer, or a reason connected with it, the dismissal will be automatically unfair. The only exception to this is if your employer can show the dismissal was for an economic, technical or organisation reason.

COMPENSATION

If an employee is successful in their unfair dismissal claim they can claim compensation for their unfair dismissal. The compensation is split into Basic Award and  Compensatory Award.

The maximum an employee can be awarded in compensation for unfair dismissal is £93,332 – the maximum amounts under the Basic Award and Compensatory Award combined.

Capped
However, it is important to note that the Compensatory Award is also capped at an employee’s yearly salary.

When awarding compensation for unfair dismissal, the tribunal will also take into account whether the applicant tried to resolve the dispute by using the employer’s appeal procedures, before making an application to the tribunal.

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