Acas publishes new guidance on fire and rehire practices. What do they say and how might employers and employees be affected?

When it comes to running a business there are often ups and downs; one of the more significant negatives can be sizing down on staff. Of course, sometimes there are inescapable reasons for firing an employee that would not be up for debate, such as stealing from the company, behaving in an aggressive way to co-workers or refusing outright to work.

The challenge and controversy can arise when the employers have something in mind in regards to how they want the business to run, or how they want particular employees to work, which can eventually lead to employees being fired and new people hired to replace them. However, often there may be ways to avoid sacking people and still be able to achieve the changes those at the top of the business are aiming for. This is what ACAS hopes their new guidance can help with.

What is fire and rehire?

Just to remove any doubt, the process of fire and rehire involves an employer firing or threatening to fire a worker if they do not agree to new terms within the company. It is not a one size fits all situation, and each case is different, but in many cases the changes are negative to the worker. For example, it could be a decrease in pay, reduction of allocated holiday time or removal of sick pay.

It can also be used for instances when staff are removed and then made to reapply for new roles within the same company.

What does Acas say?

Acas Chief Executive, Susan Clews, has said:

“Our new advice is clear that fire and rehire is an extreme step that can seriously damage working relations and has significant legal risks for organisations.

“Employers should thoroughly explore all other options first and make every effort to reach agreement with staff on any contract changes.

“Organisations that consult with their workforce in a genuine and meaningful way about proposed changes can help prevent conflict at work and stay within the law.”

Risks of hiring and firing

The Acas report goes on to list reasons why going down the route of firing and rehiring can often backfire on the employers themselves, and create a myriad of other issues. For example, their ex-employees may take legal action against them if they feel strongly enough, remaining staff may lose trust and begin to look elsewhere, and the firm may fall victim to reputational damage which is likely to make attracting new workers difficult.

Acas recommendations

In their guidance, Acas make a number of recommendations to employers who are thinking of making changes to employment contacts. Some of which may be helpful and can at least provide other options instead of moving straight to the fire and rehire stage.

What to consider first

As an employer, before you propose an employment contract change, you should consider:

what issue you are trying to solve

if a contract change is definitely needed to solve it

It is always worth looking at the problem from multiple angles to see if there are other ways of solving it.

Examples of when employers may need to consider employment contract changes include:

to make sure contracts are up to date with new laws or regulations

to better reflect someone’s job role, if it has changed

to introduce new terms and conditions, for example contractual redundancy pay or enhanced maternity, paternity, parental or adoption leave and pay

to reflect changes to an organisation, for example if it is considering moving to a different location or changing who people report to

helping an organisation better adapt to changing customer needs

economic reasons, for example if an organisation is considering a restructure or other changes to stay competitive in a changing market

Proposing the contract changes

Employers must inform all affected employees and workers and any relevant employee representatives, communication is absolutely key.

Employers must inform them about:

what the proposed changes are

who might be affected

why the changes may be needed

the timeframe for the proposed changes

any other options that have been considered

It is also important to take note of anyone who is absent when this information is communicated, or anyone who needs the information given to them in a different language for example. You cannot leave anyone out.

Providing clear information as early as possible helps:

give enough time for everyone to consider the proposed changes and how they wish to respond

explain what other options have been considered and why they are not considered appropriate

build trust by giving employees a say and assuring them you want to hear their concerns and suggestions

everyone work together to find solutions if there’s any disagreement about the proposed changes

Where contracts cannot be agreed to

This is the tricky part, and most likely the part of the guidance that will be of most use to employers. It is worth saying that while it may seem impossible at times to successfully negotiate, it is always worth trying to the very end, as it can make things much easier going forwards.

To stay focused on keeping discussions constructive, it can help to:

share any more relevant information – being transparent about your reasons can help others understand them better and make discussions more effective

continue to ask questions and listen to answers – taking time to understand other people’s views can help you find common ground

be prepared to consider changes to your original proposal – encourage alternative solutions and be open-minded to them

try to agree one change at a time – it can help to break down complex problems into smaller ones, for example start with ‘what’ might need to change, then move on to ‘how’ and ‘when’

recognise that differences of opinion are normal and to be expected – considering different views can lead to new possibilities to explore

try to find a solution that includes something for everyone – do not assume that someone must win and someone must lose

Dismissing and rehiring

If worst comes to worst, and the only way forward is to submit to the dismissal process, Acas has some advice on how to make it go as smooth as possible.

It is important to consider that by ending the employee’s original contract of employment you will be dismissing them. So you must:

have a fair reason for dismissal

follow a fair dismissal process

provide the correct amount of notice

offer the employee the right of appeal against their dismissal

If you dismiss and offer to rehire someone and it is not a redundancy situation, you will need to show you had ‘some other substantial reason’ to dismiss if it is challenged at an employment tribunal.

For example, it might be considered ‘some other substantial reason’ if:

your business is in severe financial distress

you have made exhaustive attempts to reach agreement on contract changes

there was genuinely no other option but to dismiss and offer to rehire

Possible employment tribunals

An employment tribunal will consider factors such as:

if you had a good business reason for introducing the change

if you reasonably and genuinely consulted with employees, including making any compromises where appropriate

if the changes you made were reasonable, for example if changes did not unfairly affect the financial wellbeing of employees

the extent to which you considered alternatives to dismissal

if any recognised trade union recommended or objected to the proposed terms

how many employees accepted the change and how many rejected it

if it was reasonable for an employee to refuse the change in the circumstances

Our thoughts

As a business ourselves, we are well aware that changes can occur as firms grow, people develop new skills and employees start moving up and down the ladder. It is the nature of working life. However, it is important to accommodate changes in the correct way, and to be open and supportive of your workers.

As you can see from the above points, it can be easy to fall into bad habits which can lead to disruption in the workplace. It is so important that colleagues are treated with the respect they deserve. Even if the only option is to get rid of old staff and bring in new people, the proper processes have to be followed if an employment tribunal is to be avoided. More often than not, however, we believe that such problems can often be solved internally with the right motivation and communication from employers who use best practice.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

Links to download below:

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

Android: https://play.google.com/store/apps/details?id=com.lisaslaw

lisaslaw@web

See Full Bio

If your ex-spouse has taken your children and moved permanently to another country, can you bring them back?

Written by Angeline Teoh.

If you and your ex-spouse are separated, it is illegal for any parties to take the child(ren) abroad without the other parent’s consent, unless permission from the Court is obtained. Failing to obtain consent from the other party will make you run a risk of falling foul of the Child Abduction Act 1984 and/or the Hague Convention on Civil Aspects of International Child abduction.

If your ex-spouse has taken your children outside the United Kingdom without your consent, you may be able to apply to the Court for an order requesting for the children to be brought back; however, it is an important/vital issue that in which country the children are habitually residing on the date of the application. This means that you will need to make such application as soon as possible, as the longer you delay it, the more your children will have resided in the relevant county and the more reluctant the Court will be to make any order so to change the children’s habitual residence. Such application is far from being certain, which is illustrated by the following case.

ES v LD [2021] EWHC 2758(Fam)

In the recent case of Es v LD [2021], the two children, aged 14 ½ and 12 moved to the UK from Latvia in December 2019 with their mother after the parents were divorced. The mother stated that the father gave his consent orally and agreed to let the children remain in the UK. The father also had full knowledge since December 2019 that the children were now living in the UK and the father had contact with the children via video calls.

However, the father had not done anything to commence proceedings in Latvia during the whole 21 months when the children were living in the UK. The father only commenced proceedings in the UK, under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the 1980 Hague Convention) on 13 May 2021. At that time, the children have already habitually resided in the UK for more than 12 months.

The issue for this case is whether the father’s application, seeking the return of the children to Latvia, should be granted?

Regarding the father’s application, the mother has four defences:

The children were settled in the UK, pursuant to Article 12 of the 1980 Hague Convention

The children objected to being returned to Latvia, pursuant to Article 13

There had been consent and acquiescence under Article 13(a)

There was a grave risk of harm and intolerability under Article 13(b)

The issue for the first defence was whether the children, having resided in the UK for more than 12 months, mounted to the definition of “settled”. It was stated in the judgment that “settled” is defined as “a person had to not only physically reside in a new home as a permanent residence, but had to genuinely intend to establish that place as a new home. Both the physical constituent and mental constituent have to be proved”.

The judge submitted that it was ‘quite clear’ that the children were settled in the UK both on the date of the application and on the date of trial. For the first 11 months, the children and their mother had lived in the UK ‘quite remarkably’ and had now settled in the new environment.

In addition, for the whole 21 months when the children were living in the UK, the father was aware of their whereabouts but no request for a return was made during that one-year period. The father only commenced proceedings after 21 months, which the children had already settled in the UK.

The finding that both children were settled in the UK meant that all the elements of Article 7 of the Hague Convention 1996 were proved,

The issue for the second defence was whether the children had actually objected to a return to Latvia and whether the children had attained an age and degree of maturity at which it was appropriate to take account of their views.

It was found that the children objected to a return to Latvia and they were of an age and degree of maturity at which it was appropriate to take account of their views. The Court exercised the discretion granted to it under Article 13 of the 1980 Hague Convention against a return of the children to Latvia. The Court declined to adjudicate the mother’s further defences as it was unnecessary to do so in the circumstances where first and second defences had succeeded. The father’s application was therefore dismissed.

Our comments

This case is a good reminder to everyone to act immediately in a children custody case. The result of the father’s application might have been different if the father had commenced proceedings earlier, and not wait for 21 months period. As stated above, children’s integration into a local society increases with the elapse of time. The speediness of such proceedings is likely to affect this important factor and the judge’s discretion.

If you think your child is at risk of child abduction or has been taken abroad by the other party without your consent, please seek legal advice immediately. It is very important to act promptly in the case of child abduction. We also urge you to seek legal advice if you are unsure of what to do in such circumstances or whether you are allowed to take your child abroad.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

Links to download below:

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

Android: https://play.google.com/store/apps/details?id=com.lisaslaw

lisaslaw@web

See Full Bio

Persistence, preparation and persuasion is key!

Written by Mahfuz Ahmed.

We were recently successful in an appeal of significant importance to our client, which shows that a client’s persistence and a well prepared appeal, can lead to a fantastic result, regardless of previous decisions.

Background

Our client is a Chinese national who came to the UK alone over 17 years ago, leaving his wife and 2 children. He was granted indefinite leave to remain a few years later.

In 2013, our client instructed solicitors to make an application for his wife and 2 children to join him in the United Kingdom. The application was refused and his appeal was dismissed, as the Judge believed that our client was no longer in a genuine relationship.

Our client instructed another firm of solicitors in 2015 to again make an application and similarly this was again refused, and appeal dismissed for the same reason.

In 2017, the client instructed new solicitors for a third time. However, on this occasion he made an application for his wife and 1 child to join him, as the other had unfortunately become an adult. The application was again refused and appeal was dismissed.

Our instruction

The client approached us and instructed us to represent himself and his family. We were his fourth solicitors that he had used. The Client placed great trust in us as at the time of the application his son was almost 18 years old and therefore should the application be refused, any future applications could not include his children.

The Appeal

As expected, the application for his wife and son to enter the United Kingdom was refused. The matter proceeded to appeal.

We had no doubt that there would be great difficulty in persuading a first-tier Judge that their relationship is genuine and persisting after all these years. We had the momentous task of dealing with the principles in Devaseelan (Second Appeals – ECHR – Extra-Territorial Effect) Sri Lanka *[2002] UKIAT 0070 which state that if there is a previous appeal on the matter, then the findings of the Judge during the previous appeal would be the starting point in the current appeal. In our case there were three negative judgements!

We prepared the appeal with great care, formulating what we believed to be key arguments that was not considered previously. The Client was robustly represented at the appeal hearing and the appeal was successful.

Our Comments

This case shows the importance of persistence. If you are in the UK, and have previously tried to make an application for family member to join you or obtain leave to remain in the UK, then any refusal should not deter you. If the matter is of great significance to you then we feel you should not concede.

It shows the importance of an appeal being well prepared and legal expertise required for such preparation. Choosing the correct legal representation is the vital first step in any legal matter.

Our view is that there is nothing more important than being together with your loved ones, especially in light of the current circumstances and therefore we are delighted that our client’s family can finally join him here in the UK.

Should you require assistance in making an application for your family member to join you or remain with you in the United Kingdom, then do get in touch.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

Links to download below:

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

Android: https://play.google.com/store/apps/details?id=com.lisaslaw

lisaslaw@web

See Full Bio

How can COVID-19 restrictions affect EUSS applicants, and what measures are in place to bypass this issue?

One of the major concerns for people applying to the EU Settlement Scheme throughout the ongoing pandemic is the fact that they have been outside the UK for longer than they had planned, meaning their continual residence may be affected. This can easily occur when travel restrictions are put in place, meaning people can be stranded, and it is not their fault. You will remember that for an extended period there were many countries on the ‘red’ and ‘amber’ lists, which meant people in those countries could not travel to the UK or could only do so under specific circumstances.

This blog will look into the guidance around EUSS applicants who have faced such hardships, and whose absence from the UK has exceed the permitted time limit to successfully apply to the scheme in regular circumstances, due to COVID-19 restrictions.

Making your situation known

The deadline to apply for the EUSS was 30 June 2021 for most people. However, you can still apply if either you have a later deadline – for example, you are joining a family member in the UK who was living in the UK by 31 December 2020 or you have ‘reasonable grounds’ for being unable to apply by 30 June 2021.

When completing your initial application to the EUSS, there will be a space available in which you can provide details regarding how COVID-19, or other significant factors, affected your situation and restricted your ability to travel back to the UK.

Each application will be assessed on a case-by-case basis, and caseworkers are said to be adopting a flexible approach and using discretion where appropriate, which we hope is true. You may be contacted for further information or evidence to support your application where the caseworker feels this is necessary.

Providing evidence

There is specific evidence that will be accepted when you explain your situation on your application.

Examples of acceptable evidence include (but are not limited to):

used travel tickets confirming the dates you left the UK and returned
confirmation of flight cancellations detailing the dates and times
doctor’s letter confirming you contracted coronavirus
doctor’s letter confirming you were identified as vulnerable and advised to shield
email or letter confirming you, or a person you were living with, received a positive coronavirus test result
official letter confirming you were in coronavirus quarantine
doctor’s letter confirming your family member, who you have been caring for, contracted coronavirus or was identified as vulnerable and advised to shield
email or letter confirming your family member, who you have been caring for, received a positive coronavirus test result
letter from a university advising you that, due to coronavirus, your course was moved to remote learning and you were advised or allowed to return to your home country to study remotely
letter from a university or employer advising you not to return to the UK, and to continue studying or working remotely from your home country, due to coronavirus
letter or other evidence from you accounting for your absence for another reason relating to coronavirus, for example, you left or remained outside the UK because there were fewer coronavirus restrictions elsewhere; you preferred to work or run a business from home overseas; or you would have been unemployed in the UK and preferred to rely on support from family or friends overseas

You can provide a copy of these documents, however the Home Office may ask you to send them the original documents if they need to see them.

Have not been able to renew passport?

If your situation has arisen from not being able to renew a passport or travel documentation due to coronavirus, you will need to provide some information so that your identity can be confirmed. These can be:

a document previously issued by the Home Office
an expired passport or national identity card
an official document issued by the authorities of your country of origin or of the UK which confirms your identity and nationality

Assessing your absence

There are slightly different rules depending on how long you were absence from the UK for, but largely the accepted reasons for an absence are the same across the board.

For example, absence of up to 12 months for an ‘important reason’ can be explained by the following reasons, you were:

ill with coronavirus
in quarantine, self-isolating or shielding in accordance with local public health guidance on coronavirus
caring for a family member affected by coronavirus
prevented from returning earlier to the UK due to travel disruption caused by coronavirus
advised by your university that, due to coronavirus, your course was moved to remote learning and you were advised or allowed to return to your home country to study remotely
advised by your university or employer not to return to the UK, and to continue studying or working remotely from your home country
absent from the UK for another reason relating to coronavirus, for example, you left or remained outside the UK because there were fewer coronavirus restrictions elsewhere; you preferred to work or run a business from home overseas; or you would have been unemployed in the UK and preferred to rely on support from family or friends overseas

This means you can rely on any coronavirus related reason (including where you chose to leave or remain outside the UK because of the pandemic) as being an ‘important reason’ permitting an absence of up to 12 months. In these circumstances, you will not have broken your continuous qualifying period of residence.

The above reasons can also be used to explain absence not intended to exceed 6 months and did not exceed 12 months.

Things change slightly when the absence is more than 12 months. Examples of an ‘important reason’ in this instance include (but are not limited to):

pregnancy
childbirth
serious illness
study
vocational training
an overseas posting

However, you can still rely on reasons to do with coronavirus if this is what has affected you. This includes (but is not limited to) where you can show you were:

ill with coronavirus
in quarantine, self-isolating or shielding in accordance with local public health guidance on coronavirus
caring for a family member affected by coronavirus
prevented from returning earlier to the UK due to travel disruption caused by coronavirus
advised by your university or employer not to return to the UK, and to continue studying or working remotely from your home country, due to coronavirus

Our thoughts

We believe that appropriate measures are in place to support those who missed the EUSS deadline get back on the right track. It is essential that such allowances are made for those affected by coronavirus, or indeed other important reasons which meant they were unable to return to the UK. There is no reason to punish people for being in situations outside of their own control, and we hope that discretion can be made by the Home Office and a lenient approach taken to people who otherwise would likely have returned to the UK in time.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

Links to download below:

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

Android: https://play.google.com/store/apps/details?id=com.lisaslaw

lisaslaw@web

See Full Bio

Sky TV presenter hit with HUGE tax bill after losing IR35 case appeal. What can we learn from this?

In a recent case, the First Tier Tribunal found that the working relationship between presenter Dave Clark and Sky Sports to be based around an IR35 contract, specifically between 2013 and 2018. As a result of this, Clark is faced with a tax bill of over £280,000. This case is one of many similar ones that have been conducted recently, with the HRMC making their presence known, which should be a warning to similar tax avoidance arrangements in the UK and those who could be in danger of being deemed tax avoiders without being fully aware of the situation.

This blog will explore the meaning of an IR35 contract and the case itself, which is interesting from a legal standpoint and may hold some lessons for self-employed workers.

What is an IR35 contract?

IR35 is the name given to the UK’s anti-avoidance tax legislation designed to tax ‘disguised’ employment at a rate similar to employment. Here, “disguised employees” means workers who receive payments from a client via an intermediary, i.e., their own company, and whose relationship with their client would equate to being an employee of that client if they were only paid directly, instead of being paid via their own company.

To put it simply, an IR35 case can be launched when someone is using their own company as a barrier between themselves and a client, in order to pay less tax on their earnings paid by that client.

Little Piece of Paradise Ltd v HMRC

In this case, which is made high profile by the celebrity status of those involved, involved Dave Clarke and Sky Sports. Clark is known for presenting darts for Sky, and had been doing so for a 6 year period. His services were paid for by Sky, but these payments would go through Clark’s production company, Little Piece of Paradise, instead of directly to him.

Sky had 64 days of production where they expected Clark to come and work for them, paying him for his knowledge on the sport and his presenting skills. Clark, however, was paid via monthly instalments, and would receive payment each month whether he had worked or not.

Also, Sky retained complete control over what programmes Clark would be required to present. Sky had the right to first call on his services, so once Sky had their schedule booked in it was up to Clark to make himself available to fit that schedule. The contracts also contained restrictive covenants to limit what Clark could do outside programme hours. For example he was not free to fill a similar presenting role for another broadcaster.

What did the tribunal decide?

As a result of the above facts in terms of the working relationship between Clark and Sky, the FTT deemed that Clark essentially was an employee of Sky and should be treated as one, instead of him reaping the benefits of working through a personal service company. As a result of this, Clark is expected to repay HMRC missing income tax and national insurance contributions for the period in question.

Aftermath

In response to the proposed new off-payroll working rules that eventually took effect in the private sector on 6 April 2021, the Sky informed all its ‘on-air talent’ that they would not be able to engage with them through a Personal Service Companies in future. It was acknowledged by the FTT that this could be indicative that Sky was admitting that its contractual relationship with Clark should have been treated as under a contract of service all along, but no further action has been taken.

What can we learn from this?

The amount of IR35 cases that have occurred, and are still occurring lately, indicates that the HMRC has them as a top priority. In terms of business relationships it is always best to lay out a contract which is fair and professional, as often the consequences of making other arrangements to limit tax can lead to serious consequences.

This is a high profile victory for HMRC, and may well ignite concerns among contractors and businesses. However, it is worth remembering that Clark’s relationship with Sky does not necessarily mirror the relationships between other businesses and freelancers.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

Links to download below:

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

Android: https://play.google.com/store/apps/details?id=com.lisaslaw

lisaslaw@web

See Full Bio

Commercial Rent Debt accrued over the Pandemic to be handled under new Code of Practice – What does this mean for landlords and tenants?

It has been announced this week that new laws and a new code of practice will dictate the handling of debts accrued by those renting commercial property during the pandemic, who have been unable to pay rent and other costs because of lockdowns and a lack of business. This will be of interest to both landlords and tenants involved in the leasing of commercial property. We will explore how the new laws will work and is expected of both landlords and tenants in this blog.

The current situation

Commercial tenants are protected from eviction until 25 March 2022. Not only this, the government is also protecting commercial tenants from debt claims, including County Court Judgements (CCJs), High Court Judgements (HCJs) and bankruptcy petitions, issued against them in relation to rent arrears accrued during the pandemic.

This provides some time for landlords and tenants to work to find solutions regarding commercial rent debts caused by the pandemic. From today (10/11/2021) negotiations between them will be conducted within the parameters of a new Code of Practice, providing landlords and tenants with a clear process for settling outstanding debts before the new arbitration process comes into force (25 March 2022).

What does the new code entail?

The Code sets out that, initially, tenants unable to pay in full should negotiate with their landlord in the expectation that the landlord waives some or all rent arrears where they are able to do so.

Tenants will need provide landlords with sufficient evidence to substantiate their need for assistance with rent, or a reduction of rent. The types of evidence that should help to substantiate the need for assistance could be business performance records, financial records showing insufficient funds or loss of key personnel and staff to name a few.

A more comprehensive list of evidence can be found below:

existing and anticipated credit/debit balance
business performance since March 2020
tenant’s assets (noting that some may be liquid assets such as cash and other may be plant and machinery which cannot be sold without ending the business)
position of the tenant with other tenancies i.e., ability to absorb the costs within those other tenancies
government assistance received by the tenant including loans and grants (which may not have covered rent but provided some financial support to the business)
dividend and bonus payments to shareholders
excessive or unreasonable dividend payments to directors (having regard for the fact that director dividends may be the director’s only income during the ring-fenced period)
overdue invoices or tax demands
unpaid or returned cheques or electronic payments
exceeding overdraft limits
creditor demands
money judgments
expert evidence received as to the tenant’s current trading position, e.g., from the tenant’s accountant
shortfalls in share issues
evidence of prior refusal of further credit, funding, or lending, (although the possibility that the tenant could obtain finance if it has not already applied for it is not to be considered a factor)
failure to meet budget projections
loss of important contracts
insolvency of a major customer
unexpected retentions -knowledge of a lack of working capital, or
loss of key personnel or staff redundancy.

On the other hand, it is also good practice for landlords to clarify the impact of late or non-payment of rent on their own circumstances. If a tenant is aware of the hardships a landlord experiences when rent is not paid, they may refrain from trying to avoid payments if that was every their intention. Where the tenancy forms one of many such tenancies for landlord or tenant then this may be relevant to the discussions.

What happens after the 25 March 2022?

From 25 March 2022, new laws introduced in the Commercial Rent (Coronavirus) Bill will establish a legally-binding arbitration process for commercial landlords and tenants who have not already reached an agreement, following the principles in the Code of Practice. Subject to Parliamentary passage, this will come into force next year. Essentially, this means a third party will enter into the situation and decide on an outcome for both parties, usually with aspects of fairness in mind.

The Bill will apply to commercial rent debts in relation to mandated closure of affected businesses. This could be pubs, gyms, restaurants etc. Debts accrued at other times will not be included.

If the landlord and tenant fail to reach an agreement by negotiation, they may be able to apply for binding arbitration. If it comes to this, both parties will be required to make offers to each other as part of both the pre-application and arbitration process. However, this does not preclude parties from reaching an agreement by negotiation prior to or outside of this process. The window to apply for arbitration will be 6 months from the date legislation comes into force, with a maximum time frame to repay of 24 months.

In our opinion, it is still worth landlords and their tenants to continue to negotiate, even once the arbitration process has commenced and even if negotiations appeared to have stalled or failed prior to arbitration.

What do we think?

Looking toward statistics, data from the British Property Federation indicates that agreements have been reached in 80% of commercial rent dispute cases since the start of the pandemic. This is promising, and is indicative of the potential to handle this type of problem inclusively, between landlord and tenant, without the need for outside involvement. Communication between both parties is key, and the more open everyone is in regards to their situations then the easier it will be to reach a reasonable arrangement.

We believe that wherever possible, agreements between landlords and tenants are better and will lead to a more agreeable outcome. However, the arbitration processes that will begin from 25 March 2022 are a good way of progressing the issue, as it cannot simply be left untreated. As it stands, it seems like the process will be as fair as possible, and is not designed around the objective of closing businesses that have struggled during the pandemic.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

Links to download below:

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

Android: https://play.google.com/store/apps/details?id=com.lisaslaw

lisaslaw@web

See Full Bio

Welcome Peggy!

We are so pleased to announce that Peggy Lim has joined our team as a Paralegal. She has already proven herself to be an intelligent and hard-working team player.

Peggy achieved both her LLB and LLM in Corporate and Commercial Law from the University of Sheffield, passing with distinctions. She completed her Bar Practice Course in Law at the University of Law in August 2021. She was actively involved in the student body during her time studying and was an elected International Students’ Officer at Sheffield Students’ Union.

Peggy has taken on legal pro bono work, particularly in the commercial sector and she has a strong interest in business and commercial law as well as litigation and immigration matters. She is looking forward to building on this experience here at Lisa’s Law.

Peggy speaks fluent English, Mandarin and Hokkien. She also has a working proficiency in Malay.

In her spare time Peggy enjoys baking and travelling; she hopes to see all the countries in the world before the age of 50!

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

Links to download below:

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

Android: https://play.google.com/store/apps/details?id=com.lisaslaw

lisaslaw@web

See Full Bio

Child Arrangements Orders: What are they and How To Apply?

Written by Angeline Teoh.

A Child Arrangements Order (CAO) is an order that regulates arrangements for a child. The Court can make orders relating to children arrangement, such as who should have children’s custody and how contact with children should be maintained and in what way. This article will try to cover the common question people frequently ask about this subject, such as who can apply for it, what order it can be, its procedure and what the Court will consider when dealing with such application. It also covers the importance of mutual agreement and family mediation.

What is contact?

Contact is the time that a child spends with an adult.

Examples:

Direct contact between the child and the person named in the order
Overnight staying contact
Supervised contact, and
Indirect contact through letters or cards

What can the court order?

The court may order:

No contact, if it is in the best interests of the child (rare)
The person with whom a child is to live (but not specifically where)
The child to live with one parent only; or
Share time between both parents (does not mean equal split)

What can you apply to the court for?

You can apply to the court for:

Child Arrangements Order
Prohibited Steps Order
Specific Issue Order
Consent Order

Who is entitled to apply for Child Arrangement Order?

The following are some examples of whom are entitled to apply for a Child Arrangement Order without permission from the court:

Parents, including unmarried fathers
Guardians
Special guardians
Step-parents with parental responsibility
Any person in whose favour a residence order is in force in respect of the child
Any party to a marriage in relation to whom the child is a child of the family
Any person with whom the child has lived for a period of at least 3 years (need not be continuous but must not have begun more than five years before, or ended more than three months before the making of the application)

Any person who is not entitled (e.g. grandparents) may apply for court permission to bring an application.

If you are uncertain whether you need to obtain permission to bring an application, please construct our solicitor.

What is the requirement before applying to the court for Child Arrangement Order?

The Court encourages both parties to reach an agreement outside of the Court and only apply to the Court if it is necessary to do so.

Before applying for the court order, you are legally required to attend a Mediation Information and Assessment Meeting (MIAM), unless you are exempt or applying for consent order.

What is Mediation Information and Assessment Meeting (MIAM)?

A MIAM is an initial meeting where you will be given information about mediation and alternative ways of reaching an agreement without going to the Court. A mediator will consider with you whether other ways are suitable in your case.

Note: A MIAM is a one-off meeting and is not the same as mediation.

What happens at a MIAM?

At the MIAM, a mediator will explain:

How mediation works
The benefits of mediation
Whether mediation is right for you
The likely costs
If you may qualify for help with the costs of mediation and legal advice
Other options you could use to help you reach an agreement

After you attend the MIAM, the mediator should provide you with a signed document to confirm you attended a MIAM, or do not need to attend. If you haven’t got a document, you should ask the mediator for one.

You must bring the signed document from the mediator to the first court hearing. This is to confirm that you attended a MIAM or did not need to attend.

Why does the Court encourage both parties to reach an agreement outside of Court?

Even though the outcome is legally binding and the decision is made in the best interests of the child, but the court process can take a long time and can be very expensive. In addition, it may be more stressful for you and your child, increase conflict between you and the other party and you may not feel in control of your own case.

What are the alternative ways to reach an agreement?

If there are no safety concerns, you should see if there is a more suitable way to agree child arrangements with the other party than going to court.

By reaching an agreement out of court, you may be able to make the situation less stressful for the child, reduce conflict with the other party, help the child to continue family relationships, save time and money.

You can seek help from:

Professional mediation
Lawyer negotiation
Collaborative lawyer (negotiate face-to-face)

What is the procedure?

If you still can’t reach an agreement with the other party with the alternative way, then you can apply to the Court for a court order.
The Applicant submits the application online or by post.
The Court will set a time and place for you and the other party for a First Court Appointment. It is called First Hearing Dispute Resolution Appointment (FHDRA).
Information about this appointment and the application will be served to the other party and any other adults involved as they need to complete a form and send it back to the court.
The court will also send a copy of the application to Cafcass (Children and Family Court Advisory and Support Service) and they may attend the FHDRA.
FHDRA is when the court investigates the issues and enquiries into the possibility of settlement.
If agreement still cannot be reached at FHDRA, the court will identify the outstanding issues and will direct how the case should proceed.
- The court might order a Cafcass officer to prepare a report to help the judge at the final hearing, or it might order that the child be legally represented in the proceedings.
- The court may also order the parties involved to prepare written statements of the evidence that they want the court to hear.
- Sometimes the court will also adjourn the case for mediation to take place, if the court thinks the parties can reach an agreement through mediation.
If the issues still can’t be sorted out, the court will ultimately hold a final hearing. At that stage, a judge will hear evidence from the adults involved, the Cafcass officer and any other necessary experts, and then make a decision.

How does the court decide what should happen?

The first concern of the court is the child’s welfare. The Children Act 1989 provides a list of considerations for the judge who has to decide the case, which help guide them in making a decision, including:

The wishes and feelings of the child concerned
The child’s physical, emotional and educational needs
The likely effect on the child if circumstances changed as a result of the court’s decision
The child’s age, sex, background and any other characteristics that will be relevant to the court’s decision
Any harm the child has suffered or may be at risk of suffering
The capability of the child’s parents (or other relevant people) in meeting the child’s needs, and
The powers available to the court

Additionally, the court must presume when considering an application for a Child Arrangement Order, unless the contrary is shown, that involvement of each parent (of some direct or indirect kind but not any particular division of a child’s time) in the life of the child concerned will further the child’s welfare. That presumption applies if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm.

The court must also be satisfied that making an order is better for the child than not making an order at all.

How long does Child Arrangement Order last for?

A Child Arrangement Order that regulates with whom the child is to live and when, will last until the child is 18 (unless the court orders an earlier date). A Child Arrangement Order that regulates when the child is to have contact with a person will usually end when the child is 16 but in limited circumstances can last until the child is 18.

Can you change or enforce an order?

A court order is not flexible. You will need to apply to court again if your situation changes.

You or the other party involved can apply to court to enforce the order if any of you is not following the terms.

Additional Information

The Court encourages both parties to reach an agreement without needing to apply for a court order. It is advised by the court to only apply for a court order if it is necessary to do so.

Please also note that you can’t bring your child abroad without the other party’s permission as taking a child abroad without permission is child abduction and it is a criminal offence.

Note:

The above information is not advice and should not be treated as such.
If you have any specific questions, you should consult our solicitors.
In case of any discrepancies between the English version and Chinese version, the English version shall prevail.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

Links to download below:

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

Android: https://play.google.com/store/apps/details?id=com.lisaslaw

lisaslaw@web

See Full Bio

Welcome Sheila Wong!

We are pleased to announce that Sheila Wong has joined us this week as an Office Administrator. She has already established herself as a highly organised and talented individual who will help us keep the office running smoothly!

Sheila graduated from Coventry University with a first class Bachelor of Arts degree in Applied Business.

She has over 10 years’ experience in Hong Kong working at different multinational life insurance companies, specialising in supporting business partners to develop business in China, Hong Kong and Taiwan.

She is a big fan of coffee, films and travelling. Her dream is to one day travel the world!

Sheila’s native language is Cantonese but she is also fluent in Mandarin and English.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

Links to download below:

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

Android: https://play.google.com/store/apps/details?id=com.lisaslaw

lisaslaw@web

See Full Bio

Immigration Issues in the Autumn Budget: What Changes Have Been Announced?

Last week, Chancellor Rishi Sunak announced the government’s tax and spending plans for the year ahead, which he promised would focus on rectifying the large financial pressures caused by the coronavirus pandemic. This budget, according to the Chancellor, will pave the way for economic growth, higher productivity and room for people in the UK to use and develop their skills.

What this budget also includes is important information regarding immigration to and from the UK, with visa routes, border control and other issues making an appearance in the announcement. This blog will focus on all the important details regarding UK immigration that were mentioned within Sunak’s speech.

The Scale-Up route

The Scale-up route will allow individuals with a ‘high skilled’ job offer from a qualifying UK-based scale-up to come to the UK to work.

For those who may need clarification, a ‘scale up business’ is defined as a company which has seen average annualised growth of at least 20% over three years with 10 or more employees. Put simply, it is a business that is doing very well, can prove so with data, and are often a fairly new company.

So, to reiterate this, eligible scale-ups will be able to apply through a fast-track verification process on this route if it can demonstrate:

an annual average revenue or employment growth rate over a three-year period greater than 20%

a minimum of ten employees at the start of the three-year period

This route was first mentioned back in July 2021 in the UK Innovation and Strategy report, and the Home Office will explore whether scale-ups who can demonstrate an expectation of strong growth in future years may also qualify following a review. The route will allow eligible individuals to work, switch jobs or employers. Individuals will be able to extend their visa and settle in the UK, subject to meeting specific requirements.

Other requirements of applicants will include:

– to pass an English-language requirement, likely to be no lower than B1, and

– hold a high skilled job offer with a (presumably annual) salary of at least £33,000

The Scale-up route will be implemented in Spring 2022, if current plans are kept to.

Global Talent Network

Talented individuals in the science and technology sectors will be identified by the UK, and then offered the chance to come and work here. The aim of the network will be to work side by side with businesses and research institutions to identify UK skills needs and find talent in overseas campuses, innovation hubs, tech development companies and research institutions, with the notion of bringing them to the UK firmly in mind.

There is no any concrete details about this yet, apart from a ‘concierge service’ to help potential applicants come over smoothly to the UK. This makes us feel that the UK will attempt to make the route as appealing as possible for the right candidates.

We will be sure to cover this as more information is revealed.

Electronic borders

A huge sum of money, £41million, is to be budgeted by 2024-2025 for the Future Borders and Immigration System (FBIS) programme to start working towards the introduction of Electronic Travel Authorisations for non-UK visitors, enhanced watch-listing and move towards further automation for passengers on arrival by 2025.

One of the main additions will be added powers to the Border Force staff, who will have the ability, if required, to check whether an individual has applied for, or been granted status under the EU Settlement Scheme, should they need to do so. It also strengthens government’s intention to move to digital status in general, rather than passport vignettes and biometric cards.

You can find further reading on the upcoming changes to border control here.

Afghan Citizens resettlement scheme

This scheme will include £20,520 per person for local authorities who resettle Afghan families. This will be coupled with an additional £17m available for housing costs and an extra £20m pot of flexible funding.

Our thoughts

Generally, these plans seem largely positive to us. The Afghan Resettlement scheme will play an important role in the UK’s part in trying to limit the damage caused by the unfortunate circumstances faced by many Afghan citizens.

The Scale-up route makes sense to us, as it is right for people to be rewarded for their success. If a business is doing excellent work, then those working overseas for it should have the chance to come to the UK and continue to thrive, it is a win-win situation for both the UK and the candidate.

As there is a shortage of talent within the science and tech sector in the UK currently, we are pleased to see plans being put in place to attract such candidates from around the world, and we feel that the routes should be accessible and clear from the start to avoid any confusion which may put people off coming. We are intrigued to see further details as they are released.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

Links to download below:

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

Android: https://play.google.com/store/apps/details?id=com.lisaslaw

lisaslaw@web

See Full Bio

Have a question? Our friendly and experienced team are here to help.

Subscribe to our newsletter

We post weekly articles covering a variety of topics, including immigration, property, and more, so subscribe to our newsletter for the latest updates.