Settlement Agreement by employer – what do I do now?

Settlement Agreement by employer – what do I do now?

Settlement Agreement by employer – what do I do now?

Posted on 5th November, 2021

Read time: 2 mins

What is a settlement agreement?

A settlement agreement is a legally binding document between an employer and an employee which settles any employment-related claims the employee may have against their employer, for example, in respect of unfair dismissal or discrimination. Settlement agreements can be used in situations where a dispute has arisen in the employment relationship and the parties wish to settle the dispute on agreed terms. They are also increasingly used in redundancy situations where the employee agrees to give up their employment rights to bring a legal action against the employer relating to their redundancy, for example, if the employer has failed to carry out appropriate consultations, usually in exchange for the employer offering to pay an enhanced redundancy payment to the employee for the loss of their employment.

A settlement agreement has potential benefits for both the employer and employee. From an employer’s point of view, they get the certainty of knowing that the employee cannot take them to an employment tribunal, whilst the employee receives the benefit of a financial package without the uncertainty and costs involved in having to make an employment tribunal claim.

Am I obliged to sign the settlement agreement?

No, there is no obligation for you to agree to the settlement terms offered to you or indeed to sign the settlement agreement at all. If you do not sign the settlement agreement, your employment will continue unless, and until, it is terminated by either you or your employer. If your employer subsequently terminates your employment, you may be entitled to make a claim against them in the employment tribunal if that dismissal is unfair, for example, if your employer has not followed appropriate procedures, or if you are dismissed in breach of your contract of employment.

Do I need to obtain legal advice on a settlement agreement?

Yes, you do. A settlement agreement will only be binding upon the parties if the employee has received legal advice on the terms and effects of the settlement agreement before signing. Employers must give employees a reasonable amount of time to receive the appropriate legal advice and cannot insist on an employee signing without having received advice. An appropriately qualified “relevant independent adviser” such as a solicitor, chartered legal executive, certified union official, or certified advice centre worker will sign a certificate to confirm that they have advised you in relation to the settlement agreement.

Can I negotiate?

Yes, you can. An employment lawyer can assist in trying to negotiate the most favourable terms on your behalf, such as increased compensation or an agreed reference. You should bear in mind that negotiations are not always successful and you may have to decide whether or not to accept what is being offered.

Who pays the costs?

Your employer will usually pay your legal costs, or at least contribute towards those costs. You should check the amount your employer is offering to pay towards your legal costs before contacting us for an estimate of likely costs involved depending on your individual circumstances.

What do I do next?

If your employer has suggested a settlement agreement to settle a dispute and/or to bring your employment to an end, you should speak to an experienced employment lawyer as soon as possible. Please contact us on 01823 337636 and we will be happy to help.

 

 

 

CALL DURING OFFICE HOURS OR EMAIL

01823 337636 or nicola.grant@everys.co.uk

Financial Consent Order for Divorce

Financial Consent Order for Divorce

Financial Consent Order for Divorce

Posted on 12th August, 2020

This is a question that I am asked many times and one where the consequences of not obtaining one can be devastating. The simple answer to this question is yes.

It is often a misconception that once you are divorced or your civil partnership is dissolved, your ex-husband/ex-wife cannot make any claim against your assets. This will only be the case if you are divorced/have a dissolution, and you have a Financial Consent/Remedy Order.

The best way to explain this is in a real-life scenario that I often see:

A husband and wife get a divorce without any legal advice. They share a house together but decide that one party will carry on paying the mortgage for the time being and they will sort out the equity in the property at a later date. Years go by, and perhaps both parties now have other partners. One party then decides that they would like the property sold so their equity can be released. The other party does not want the property sold. They both, at that stage, seek legal advice. There is a risk that the parties cannot agree, in which case they will then need to attend Court, despite it being many years later after their divorce.

In this scenario, both parties have left themselves wide open to financial claims against each other’s assets. Yes, they only have one joint asset but, by this point, one party may have bought another property, the parties may have considerably increased their pensions, they may have significant savings, or they may have received an inheritance. All of this would be open to a claim being made by their ex-wife/ex-husband because they did not have a Financial Consent Order. Further, their new partner’s assets may be taken into account in proceedings.

The only way to have security over your assets in divorce/dissolution is to have a Financial Consent Order as well. There are many ways in which this can be obtained and there doesn’t have to be huge expense or Court hearings.

If you would like further advice, please do not hesitate to contact the Family team for a one-hour appointment, at a reduced fixed fee of £125 plus VAT.

 

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What happens if I lose mental capacity?

What happens if I lose mental capacity?

What happens if I lose mental capacity?

Posted on 17th March, 2021

What do I mean by mental capacity?

Mental capacity is a complex subject but, at its most simplistic, it can be defined as our understanding of a given concept, situation, or predicament. It refers to our ability to be able to weigh up the pros and cons of a situation and make an informed decision. It is not black-and-white because very often it is not a case that one day we can make all our decisions and the next day we cannot make any. It is time and task-specific. This means that it depends on our understanding at a specific time, which is important if our capacity is fluctuating especially if we have good days and bad days, and it depends on what we need to understand about that specific decision we are being asked to make.

The important question that we should ask ourselves is who will make decisions for me if I cannot make them for myself? The starting point is always to check whether the person whose mental capacity is in question has done any planning for this possible eventuality by making a lasting power of attorney or if there was an old-fashioned enduring power of attorney in place.

There are two types of lasting powers of attorney:

  1. finance and property; and
  2. health and welfare

These are two very different and specific areas and you have to have both powers in place in order to make decisions in both categories.

If you have an enduring power of attorney in place you have covered the decisions that may need to be made on your behalf in relation to property and finance. However, they do not apply to welfare decisions.

Not everyone makes lasting powers of attorney and there are often various reasons why this is the case. In my experience, It can be because people are not aware that they can make powers of attorney. It can be because people think that this will impact upon their independence and don’t see it as a support tool. Sometimes the older we become the harder it is to make these decisions because we are nearer to the prospect of needing support. Some families have relationship difficulties with their children or between their children and so it makes it very difficult to decide who would be the appropriate person to be involved. In these circumstances, sometimes people choose not to make that decision because it’s easier to do that than run the risk of causing any more friction within the family. Some people do not have family and don’t know that they could ask a professional to do this for them.

If, for any reason, you or a loved one loses mental capacity, and you have not had the foresight to prepare for this situation, it is not the end of the road. There is an alternative that may offer some assistance. That is the Court of Protection.

What is the Court of Protection?

The Court of Protection is a special court that makes decisions on behalf of people who cannot make decisions for themselves. Someone could apply to the Court on your behalf and ask that they be appointed as a deputy to have the authority to make decisions on your behalf that you cannot make for yourself. That person would be referred to as a deputy.

There are two pathways for appointing a deputy. The first pathway is for property and finance which will involve stepping into your shoes and managing your affairs on your behalf in accordance with the powers conferred by the court in their order. It is very important to set out the powers that you will need when making your application.

The second pathway is for health and welfare. The Court is more reluctant to appoint a health and welfare deputy because it would prefer to deal with issues of welfare on a matter-by-matter basis. It recognises that to give someone a carte blanche ability to make welfare decisions for someone is to give them a lot of power over that person. However, the Court will look at appointing a health and welfare deputy where there are decisions that are going to need to be made about someone’s care, medical treatment, and place of residence. This will be particularly important if there are conflicting ideas as to what is the most appropriate way forward for the person who is unable to act for themselves.

The initial application to the Court is a paperwork application. The matter will only go before the Court if it is disputed. The outcome is the same as appointing an attorney but there are some extra protections for the named person. That being an insurance policy has to be put in place so that if the appointed deputy acts negligently, or if there is any impropriety, the named person will be put back into the position that they would have been in had the deputy not been appointed.

The deputy also has a duty to prepare an annual report to the Court giving an account both of the finances that have been spent in the current deputy year and any decisions that they have had to make on their behalf. The report also includes the people that the deputy has had to consult during that year.

The process for applying for a deputy does take longer than making lasting powers of attorney. In my experience, when a family is applying to the Court for an order it is because something needs to happen that cannot happen without it. This can be quite stressful for the family. It is also more expensive because you have to consider your solicitor’s fees, court fees, the cost of preparing a medical report, and the ongoing insurance costs. In most circumstances, these costs will come out of the named person’s estate.  However, if it is a disputed matter then not all costs may be allocated to the named person. That would be a matter for the Court to decide.

The plus side of a deputyship is that there is annual accountability scrutinised by the Office of the Public Guardian.

If you would like more information regarding making a Court of Protection application or making lasting powers of attorney, please contact me on jane.flaherty@everys.co.uk or 01404 541904.

 

 

 

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Divorce – What Is The Process And Factors Affect The Cost?

Divorce – What Is The Process And Factors Affect The Cost?

Divorce can be a challenging, emotional, and often expensive process for couples. Whatever the reason behind your separation, if you and your spouse are seeking a divorce, here’s all you need to know about the process and associated costs. And if you’re looking for experienced divorce lawyers to support you with your case, don’t hesitate to get in touch with Everys Solicitors.

Can I get a divorce? 

According to the Office for National Statistics (ONS), 42% of marriages end in divorce. For most couples, this is not a sudden turn of events — you may have felt emotional distance or marital discord for some time or have perhaps been living separately. Divorce is the legal ending of your marriage.

In England and Wales, to qualify for a divorce, you must:

  • Have been married for over a year.
  • Be in a relationship that has permanently broken down.
  • Be in a marriage that is legally recognised in the UK (including same-sex marriage). However, the process is different for a civil partnership.
  • Live in the UK permanently — or the UK must be the permanent home of your spouse.

The Divorce, Dissolution and Separation Act 2020 came into force on the 6th of April 2022, allowing couples to divorce without having to demonstrate a ground for divorce. This has a very different approach than previously, now enabling couples to divorce on a ‘no fault’ basis.  The new Act also applies to civil partnership dissolution.

How long does the divorce process take?

The divorce process is unique to the couple involved, and their divorce lawyers. The new system involves parties being encouraged to agree on issues surrounding finances, property, children. The new Act requires a very different approach to the words previously used in Divorce. No longer will they be described as Petition; Decree Nisi and Decree Absolute.  Instead, the new wording will be Sole or Joint Applicant/s; Conditional Order and Final Order.

Divorce costs

Divorce costs can vary. To file an application, you will need to pay a £593 court fee.

A divorce will accrue the cost of standard court fees, along with your divorce lawyer’s fees. There may be additional fees if you need a replacement marriage certificate or any translation services.

Emma Gray Appointed Regional Co-ordinator

Emma Gray Appointed Regional Co-ordinator

Solicitor Emma Gray, of Everys Solicitors in Honiton, was appointed as Regional Co-ordinator for the Devon & Cornwall region of “Solicitors for the Elderly” (SFE) in June 2018.

Established in 1996, SFE is a national network of highly skilled lawyers providing legal services and expert advice on Powers of Attorney, Living Wills, tax planning, funding for social care and many other related issues, specifically for the elderly and vulnerable.  Prior to joining SFE, as well as being fully qualified solicitors who spend 50% of their time on older client law, potential members must obtain both the ‘SFE Older Client Care in Practice Award’ and the ‘Older Client Law in Practice Award’.  These develop the soft skills necessary for dealing with elderly and vulnerable clients which includes understanding the issues affecting health and wellbeing in later life, as well as being able to detect elder abuse such as when a client is being coerced.  As a benefit of the membership, SFE ensures its members are kept fully abreast of the latest developments through newsletters, updates, on-going training and events.

As a Regional Co-ordinator, Emma Gray is the main point of contact for Devon and Cornwall and links in with the national group.  Together with the support of the Devon and Cornwall committee, she ensures that information is communicated to the local members through meetings and training sessions provided by experts in the field of elderly client legal services.  As well as being responsible for running the local branch, and being a key contact for legal advice in this area, Emma is a local ambassador for SFE; raising awareness of elderly client issues with local organisations.

Emma said: “I have been a Dementia Friend for a number of years and have, unfortunately, both been a carer for a family member and suffered the heartache of bereavement.  My new role as Devon and Cornwall Regional Co-ordinator gives me the opportunity to continue furthering the legal knowledge and understanding of all the issues surrounding the elderly and vulnerable within our community.”

Everys Solicitors is an independent law firm with recognised expertise in legal issues affecting the elderly and vulnerable.  With Emma’s new appointment, clients can have the confidence that Everys has the specialist knowledge and skills required to handle their case with sensitivity and professionalism.

Contact:
Emma Gray
Tel: 01404 540941
Email: emma.gray@everys.co.uk