Skip to main content

Category Archives: Insight Article

What are trustee responsibilities? A guide to key duties and best practices

Posted on by
Trustee responsibilities

What is a trustee?

A trustee is a person or a firm that holds and administers property or assets held in a trust for the benefit of a third party. Trusts can be created for a variety of purposes. For example, trusts can be established in bankruptcy situations, in certain types of retirement plans, or to manage assets for a minor or someone lacking capacity. Alternatively, you can establish a trust to hold assets with income and capital to be distributed to beneficiaries over time.

Trustees have a fiduciary responsibility to the trust’s beneficiaries, which means the trustee must act in the best interests of the beneficiaries when managing the trust’s assets.

Key trustee responsibilities

A Trustee’s duties are many and varied, and we set out some of the duties you can expect to undertake:

Making Decisions

Trustees must make all decisions regarding the trust. They must decide on the acquisition, application, and disposal of the assets. They also need to implement the purposes of the trust for the benefit of the beneficiaries. They must also make decisions within the trust rules and have a duty to exercise reasonable care, skill, and diligence when making decisions and managing the trust’s assets.

The Trustee Act 2000 extended the power of investment trustees whilst protecting the beneficiaries’ interests against abuse of these powers.

Unless otherwise provided for in the trust document, trustees’ decisions must be unanimous.

Managing assets

Trustees are responsible for managing the assets in a trust, be they money, financial instruments, property, or other asset types (for example, cryptocurrency). The assets must be managed for the benefit of the trust’s beneficiaries.

If the trust is a discretionary trust, the trustees will have more freedom to make decisions, provided those decisions benefit the beneficiaries.

The 2000 Act empowered trustees to acquire freehold or leasehold land in the UK.

Trustees can instruct professionals to act on behalf of the trust to assist in acquiring and disposing of assets.

Act in the best interests of the beneficiaries

The trustees must always act in the best interests of the beneficiaries. They must be impartial to ensure no single beneficiary benefits over others. They must also avoid any conflicts of interest concerning themselves, their affairs, and the trust estate under their charge.

Follow the rules of the trust

The trust deed establishing the trust will set out the trustees’ powers and rules designed to benefit the beneficiaries. Trustees cannot ignore those rules when making decisions and must always follow them, even if a beneficiary disagrees with them.

If the trust is a discretionary trust, the extent of the discretion will be specified in the trust deed. Again, trustees should ensure they do not exceed the powers or breach the rules set down in the trust document.

Keeping accounts and paying taxes

The trustees will be responsible for accounting to HMRC for any taxes due by the trust. These might include Inheritance Tax, Capital Gains Tax, and Income Tax. The Trustees will prepare accounts each year and submit returns to HMRC to account for any tax due. Trustees can instruct accountants to prepare accounts and advise on taxation matters.

Complying with the common law duty of care

All trustees must comply with the common law duty of care. That means they must take the precautions that an ordinary prudent person of business would take in managing similar affairs of their own.

Think carefully before accepting a trustee appointment

The duties and responsibilities of trustees are onerous and can take up a great deal of time. They may bring you into conflict with the trust’s beneficiaries, which can be challenging, especially when they are family members.

Before accepting the position, take professional advice about the duties and responsibilities and familiarise yourself with the rules under which you are being asked to act as a trustee.

Contact James McMullan, Partner and Head of Private Client at RIAA Barker Gillette, for expert advice on navigating trustee responsibilities and protecting beneficiaries’ interests.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

What is the Employment Rights Bill 2024?

Posted on by
Employment Rights bill 2024

Despite its transformative potential, the Employment Rights Bill 2024 represents a gradual shift rather than an immediate overhaul. Many key reforms have been postponed, diluted, or subject to further consultation. The Bill’s staggered approach offers employers time to adapt, but it signals a new direction for worker rights in the UK.

A gradual introduction of reforms

Fulfilling the government’s election promise to publish the Bill within 100 days of their landslide election victory led to compromises and unfinished business. Several ambitious reforms outlined in the government’s Make Work Pay manifesto, aimed at addressing low pay, job insecurity, and poor working conditions, were scaled back under pressure from employers. Consequently, some of the most impactful provisions remain under consultation or will be phased in over time.

Alongside the Bill, a companion paper, Next Steps, outlines how the government intends to deliver on its election promises not yet covered by the Bill. With implementation unlikely before mid-2025 and some measures delayed until at least 2026, the Bill reassures employers that there will be no sudden shifts in the legal landscape.

Fundamental changes and what’s missing

Unfair dismissal rights from day one 

One of the most anticipated changes is the introduction of unfair dismissal protections from the first day of employment. Currently, employees need two years of continuous service to qualify for such protection. The Bill proposes a statutory probationary period, likely between six and nine months, giving employers time to assess an employee’s suitability. While media reports hint at this timeframe, the final details remain subject to consultation.

Flexible working as a day-one right 

Building on previous legislation, the Bill makes flexible working a statutory right from the first day of employment. Employers can still refuse requests based on the eight permissible business reasons for refusal, but the refusal must be reasonable. This shift is expected to encourage greater workplace flexibility and make it easier for employees to challenge refusals.

Regulation of zero-hours contracts 

While zero-hours contracts remain lawful, the Bill introduces protections for workers. Employers must provide contracts that reflect the average number of hours worked and give reasonable notice of shifts. Workers will also be compensated if shifts are cancelled without adequate notice, offering more security to those in precarious employment.

Protections against ‘fire and rehire’ 

The Bill introduces significant protections against the controversial practice of “fire and rehire,” where employers dismiss staff and offer reemployment on less favourable terms. Under the new law, dismissing an employee for refusing changes to their contract will be considered automatically unfair, closing a loophole that has allowed employers to pressure workers into accepting less favourable conditions.

Strengthened protections for new parents 

Pregnant women and new mothers will enjoy extended protections under the Bill. It will become unlawful to dismiss a woman on maternity leave and for six months after her return, except under specific circumstances. Additionally, paternity and parental leave will become day-one rights, with no qualifying period required, making it easier for employees to access these entitlements.

Reforms still in consultation

Single worker status 

A key reform absent from the Bill is the proposed single-worker status, which aims to simplify employment categories by merging the current distinctions between “worker” and “employee.” This proposal is still under consultation, but its implementation would represent a significant step toward greater clarity in employment rights, especially for the gig economy and freelance workers.

The right to disconnect 

Another highly anticipated reform, the right to disconnect, was left out of the Bill. Designed to protect employees’ time outside of work, particularly in an era of increasing remote work, this provision will be addressed through a forthcoming code of practice instead. Consultation on this issue is expected next year.

Other notable reforms

Statutory Sick Pay (SSP)

Under the current system, Statutory Sick Pay (SSP) is only available after four days of sickness and for those earning over £123 per week. The Bill removes both the waiting period and the earnings threshold, making SSP available to all employees from the first day of illness. This reform is expected to be one of the first to take effect.

Tougher harassment laws 

The Bill significantly strengthens employer responsibilities regarding workplace harassment. Employers will now have a duty to take “all reasonable steps” to prevent harassment, a marked increase from the current standard. This includes liability for harassment by third parties, not limited to sexual harassment, making it easier for employees to seek redress.

The Fair Work Agency 

A new Fair Work Agency will be established to oversee the enforcement of workers’ rights, including issues such as holiday pay. By unifying various enforcement bodies, this agency aims to streamline the process for employees seeking justice and ensure greater compliance with employment law across the board.

Implications for employers

While many reforms will not take effect until 2025 or later, employers should begin preparing for the upcoming changes. The phased approach gives businesses time to review their policies, contracts, and dismissal procedures to ensure compliance with the new laws. Particularly important areas of focus include:

  • Revising employment contracts to reflect new rights around dismissal, flexible working, and zero-hours contracts.
  • Implementing stronger anti-harassment policies to meet the higher legal standards.
  • Monitoring developments around pending consultations on single worker status and the right to disconnect.

Key Takeaways for Employers

  1. Unfair dismissal protections will apply from day one, with a probationary period allowing employers to assess new hires.
  2. Flexible working becomes a day-one right, with stricter criteria for employers refusing requests.
  3. Zero-hours contracts will remain lawful but must reflect actual working patterns, and cancellations will require compensation.
  4. Fire and rehire practices will be significantly restricted, making enforcing contract changes harder.
  5. Statutory sick pay will be available from day one, and parental leave rights will apply immediately without a qualifying period.
  6. Stronger harassment laws will require employers to take all reasonable steps to prevent harassment, including from third parties.
  7. The Fair Work Agency will be established to enforce workers’ rights and provide guidance on employment law.

For expert advice on navigating these changes, speak to Patrick Simpson to stay ahead of developments and ensure they are fully prepared when the Employment Rights Bill 2024 comes into force.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

Disclosure against warranties in UK corporate transactions

Posted on by
woman ticking a safety shield regarding corporate warranties

Warranties, which are contractual promises or statements of fact, are typically given by sellers to prospective buyers in a purchase agreement. These warranties cover various aspects of the target company, business, or assets being sold. If any warranty proves to be inaccurate or untrue, the buyer may have grounds to pursue a claim for breach of warranty, seeking damages from the seller.

To mitigate the risk associated with such claims, sellers employ disclosure mechanisms. These disclosures, usually made through a disclosure letter and a virtual data room, allow sellers to provide information and documents that may be inconsistent with the warranties provided.

Mechanisms of disclosure

Disclosure letter

  • General disclosures include information of a broad or general nature or details already available in the public domain (e.g., records at Companies House).
  • Specific disclosures pertain to specific information, documents, or matters the seller identifies as relevant to and inconsistent with particular warranties.

Virtual data room (VDR)

The VDR is an online repository where sellers, typically through their professional advisers, upload documents containing information relevant to the warranties and the overall disclosure exercise.

Standard of disclosure

Disclosures must meet a certain standard to effectively protect sellers. The concept of ‘fair disclosure’ is central to this standard and has been examined in various court cases.

Courts usually refer to the definition of ‘fair’ agreed between the buyer and seller and set out in the purchase agreement. Typically, fair disclosure requires providing information or documentation with “sufficient detail to enable the buyer to identify the exact nature and scope of the matter disclosed.” If the disclosures meet this standard, sellers are protected against claims arising from the warranties. However, if sellers later attempt to argue that matters that were not fairly disclosed should be inferred from documents or information, the courts are unlikely to side with them.

To meet the standard of fair disclosure, sellers should:

  • Clearly and adequately disclose important issues in the disclosure letter, providing all relevant facts to ensure the buyer fully understands the matter’s significance and its implications on the warranties.
  • Avoid relying solely on broad or generic information or merely referring to documents in the VDR, as this does not normally satisfy the required standard of disclosure.
  • Ensure that information is not hidden or inaccurately described in the VDR, as this would not constitute fair disclosure.

Furthermore, any deliberate concealment of crucial information by the seller may be considered fraudulent. In cases of fraud, the courts often disapply the limitations of liabilities that are usually set out in the purchase agreement, which could result in severe consequences for the seller.

Conclusion

Disclosure is a critical element in UK corporate transactions, serving as a key mechanism for sellers to protect themselves from potential warranty claims. Sellers who fail to make fair disclosures risk facing significant legal and financial liabilities. It is, therefore, essential for anyone involved in the sale of assets or shares to seek legal advice to fully understand the mechanics of disclosure, navigate the disclosure process effectively and enhance protection against possible warranty claims.

Speak to corporate solicitor Evangelos Kyveris today.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

Non-Disclosure Agreements (NDAs): An Overview

Posted on by
non-disclosure agreement (NDA) writte words being pealed back from an envelope

Non-Disclosure Agreements (NDAs) are versatile and can be used in various scenarios. They may also be incorporated into other documents, such as employment contracts or settlement agreements, to safeguard trade secrets or commercially sensitive information, especially during employee terminations.

Types of NDAs

There are two primary types of NDAs:

1. Unilateral NDA: This agreement imposes confidentiality obligations on only one party.

2. Bilateral (Mutual) NDA: Both parties agree to keep shared information confidential.

When are NDAs used?

NDAs are essential in various business situations. Common examples include:

  • Pre-contract Negotiations: These are discussions during tender or contract negotiations where sensitive data is exchanged to finalise an agreement. Mutual NDAs are typically used.
  • Mergers and acquisitions (M&A): The acquiring company signs an NDA to prevent the disclosure of the target company’s confidential information.
  • Employment Contracts: Employees with access to proprietary company information may sign NDAs to protect trade secrets and prevent unauthorised disclosures.
  • Product Development & Collaborations: NDAs are crucial in joint ventures or R&D partnerships to safeguard intellectual property.
  • Settlement Agreements: These are often used during employment terminations to reiterate the confidentiality provisions in the employment contract or impose new obligations where the employment contract is deficient and where the employee leaves.

Key elements of an NDA

Regardless of the context, NDAs follow a consistent structure with key provisions, including:

  • Parties Involved: Identifies the parties and their representatives, such as advisors or subcontractors.
  • Definitions: Clarifies what constitutes confidential information.
  • Obligations: Outlines each party’s responsibility to protect confidential information.
  • Return/Destruction of Information: Specifies how confidential information will be handled after the contract ends.
  • Exclusions: Lists information that isn’t protected, such as data already in the public domain.
  • Duration: Defines how long the NDA remains in effect.
  • Remedies for Breach: Specifies penalties or actions in case of a breach.

Are there circumstances where NDAs are unenforceable?

In certain situations, particularly in employment, NDAs may not be enforceable. These include:

  • Whistleblowing
  • Reporting a Crime
  • Discussing Pay with colleagues for Equal Pay reasons

Abuse of NDAs

NDAs have been misused in high-profile cases, such as the Harvey Weinstein scandal, where they were used to silence victims of sexual harassment. Recently, the UK Treasury Select Committee has heard concerns about NDAs being used to cover up discrimination and sexism. While legislation to prevent NDA misuse was proposed in 2024, it was delayed due to the general election. However, Guidance has been issued by the Solicitors Regulation Authority and the Law Society to lawyers on good practice in the use of confidentiality provisions and NDAs in settlement agreements, reflecting the scrutiny they have come under.   In May 2024, the Victims and Prisoners Act 2024 received Royal Assent.  Whilst a date for it coming into force is still awaited, the Act will make void provisions in agreements that prevent victims of criminal conduct from disclosing certain information. 

The proper use of NDAs

When used correctly, NDAs respect and protect confidential information for legitimate commercial reasons. They are essential tools in safeguarding business interests and come with legal consequences for breaches.

If you need guidance on drafting or enforcing an NDA, contact our corporate partner, Victoria Holland or our employment partner, Karen Cole, for expert assistance.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

How to navigate workplace language and avoid discrimination claims

Posted on by
Navigate workplace banter

While many employers focus on creating a positive work environment, one often overlooked factor is the impact of workplace language—specifically, office banter, casual jokes, or seemingly harmless comments. Unconscious bias, particularly in the use of language, can perpetuate exclusion and leave businesses vulnerable to legal issues.

The role of language in workplace discrimination

Language is one of the most powerful tools in communication. When words are carelessly chosen, they can foster a toxic work environment and lead to discrimination claims. The Equality Act 2010 protects employees from discrimination based on nine protected characteristics, including race, sex, disability, age, and discrimination during pregnancy or maternity leave. Discriminatory language, whether intentional or not, can result in legal ramifications.

For instance, in a 2021 case, an Employment Tribunal found that a manager who described a pregnant employee as “very emotional and teary” in an email had been dismissive and belittling. This language was seen as dismissive and stereotypical, reinforcing some harmful biases about pregnant women.

Unconscious bias and language: a hidden barrier

Unconscious biases are automatic and are often ingrained assumptions that can influence our behaviour, decisions and interactions with others. Personal experiences and societal stereotypes can shape them and are often reflected in language without any conscious awareness. Karen Cole, Head of Employment Law at RIAA Barker Gillette (UK), explains:

“Language laden with stereotypes or assumptions can have serious consequences. It affects the core culture of an organisation, as language shapes daily interactions between colleagues.  Unchecked, unconscious biases in language can marginalise employees and undermine workplace morale.

All of us carry unconscious biases, and we need to be encouraged to consider what those might be and how our use of language may reflect them. Comments made as a ‘joke’ or even as a so-called compliment can cause problems if they are uninvited and inappropriate.”

A 2023 Employment Tribunal case, which published the reasoning behind its judgment this year, highlights the issue further. A manager introduced a female employee as “glamorous,” which the Tribunal found potentially inappropriate. Describing someone in a business context this way can belittle their professionalism, which may lead to claims of harassment under the Equality Act 2010.

Fostering an inclusive workplace: language matters

Employers should take proactive steps to mitigate the impact of unconscious bias and ensure their language fosters inclusivity. Karen Cole emphasises the importance of nurturing a work environment where all employees feel valued and respected:

“Whether it’s direct insults or casual office banter, inappropriate language can harm workplace morale, reduce productivity, and potentially result in legal action.”

Here’s how employers can foster inclusion and avoid discrimination:

  1. Raise awareness: Acknowledge that unconscious bias exists. Provide examples of biased language and offer inclusive alternatives for more thoughtful communication.
  2. Challenge stereotypes: Encourage employees to question assumptions about people based on their protected characteristics, such as gender, race, or age.
  3. Use inclusive language: Address individuals using preferred pronouns and avoid gender-specific terms for tasks and roles.
  4. Focus on skills and experience: Evaluate employees based on their abilities and accomplishments, not their background or gender.
  5. Revise policies: Regularly review job descriptions, performance evaluations, and internal communications to ensure language focuses on measurable skills rather than personal characteristics.
  6. Education: Conduct regular workshops and training on unconscious bias and inclusive language practices.

The Equality and Human Rights Commission offers valuable resources that help employers create inclusive workplaces and avoid unlawful discrimination.

Contact Karen Cole today to learn how to navigate workplace language and avoid discrimination claims.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

Personal liability pitfalls for directors

Posted on by
personal liability for directors. A director ticking a safeguarding shield

A recent Supreme Court judgment in Lifestyle Equities CV and another v Ahmed and another serves as a critical reminder that company directors are not insulated from personal liability for torts (wrongs) committed by their companies.

Directors can be held personally accountable, even when acting in their official capacity, a fact that underlines the serious risks involved in their role. While some points raised by the court were obiter (non-binding), the case sheds light on several key legal pitfalls that directors must be mindful of to avoid personal exposure.

What is tort law?

Tort law governs civil lawsuits that arise outside of contractual disputes. Its primary purpose is to address harm caused by wrongful actions, offering relief to the injured party, usually in the form of monetary compensation. For directors, tort law represents a potential personal liability that can have serious financial and reputational consequences.

Key pitfalls and risks for directors

The ruling highlighted several crucial points that directors need to consider:

1. Personal liability when acting for a company

Directors may mistakenly believe that their position within a company shields them from personal liability. However, the Supreme Court rejected the idea that acting in good faith to promote the company’s success (as required by section 172(1) of the Companies Act 2006) is necessarily sufficient to protect them from liability for torts.

In delivering the judgment, Lord Leggatt made it clear that “the fact a company is regarded as a separate person does not… justify treating a director whose act is attributed to the company as free from personal liability for that act.” In other words, directors cannot hide behind the corporate veil; they can be held personally responsible for wrongful acts committed by the company under their direction.

2. Directors as accessories to corporate wrongs

Another pitfall involves being held liable as an accessory to a tort committed by the company. The court ruled that directors can be personally liable if they have specific knowledge of the wrongful act, even if they are not directly responsible for it. In cases of strict liability torts (where knowledge of wrongdoing is not required for the primary tortfeasor), a director could still be held accountable if it can be shown that they were aware of the tort being committed. Acting without knowledge or in good faith may provide some protection, but directors cannot rely on this alone.

3. Directors’ salaries could be at risk

In addressing how profits should be accounted for where the company has been guilty of a tort, the court provided some clarification but also a potential area of vulnerability for directors: the court determined that while only the profits of the primary tortfeasor (the person committing the tort) should be accounted for, a director’s salary could be considered profit if it can be shown that the salary is directly tied to the tort.

Although this is difficult to prove, the ruling sends a strong message: under the right circumstances, directors could be forced to account for part of their salary if it results from wrongful acts. This risk underscores the need for directors to exercise caution in their decision-making to avoid personal financial exposure.

Personal liability lessons for directors

Directors should not assume they are protected simply because they act in good faith or within their corporate duties. The Supreme Court has made it clear that directors can be held personally liable for torts committed by the companies they represent. Failure to act prudently or ignorance of wrongful acts could expose them to significant legal and financial consequences.

To minimise these risks, directors should:

  • Immediately cease any conduct that could constitute a tort as soon as they become aware of it.
  • Seek legal advice whenever there is uncertainty about whether their actions may lead to liability.
  • Closely monitor company activities, ensuring that any questionable actions are addressed swiftly and effectively to prevent liability.

This judgment highlights the complex responsibilities directors face in their roles. Directors must be proactive in seeking expert legal advice to fully understand their liabilities and to avoid personal exposure to tort claims. Having a clear understanding of the law will help directors navigate their duties more confidently and mitigate risks.

If you are a director and would like advice about your personal liability, contact our corporate and commercial team at RIAA Barker Gillette for expert legal guidance tailored to safeguard you and your business from potential tort-related risks.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

Divorce: Disentangling the family home

Posted on by
Picture of the family home in a pair of hands

In the UK, there is no standard formula for calculating the division of assets after the breakdown of a marriage. The court is guided by several factors in Section 25 of the Matrimonial Causes Act. These factors allow the courts wide-ranging powers of discretion, leading to vastly different outcomes. The family home often sits at the core of discussions, as it embodies more than just four walls or a place to sleep—it holds countless emotions and memories for the couple. This can lead to power struggles over who should retain it. So, how will the court decide, and what options are available?

The family home is typically treated as matrimonial property, irrespective of whether it was acquired before the marriage, inherited, or bought with external funds. Decisions about the family home are influenced by several factors, including the couple’s financial needs, mortgage-raising capacity, future housing requirements, and the welfare of any children involved.

The property may need to be sold to allow both parties to move forward financially independent of each other. Alternatively, the home may be transferred into one party’s sole name. However, one barrier to this option is often the mortgage, as it is typically one of the largest liabilities the couple must address. If one party wishes to retain the family home, they would need to release the other party from the mortgage by either taking out their own mortgage or buying out their share using their own resources. For many, this option is not feasible.

When children are involved, one of the court’s primary considerations is their welfare. This can often lead to one spouse being allowed to stay in the family home until the youngest child reaches adulthood, referred to as a ‘Mesher order’. This is essentially a deferred order for sale, and for some families, it is the best solution as it allows the children to remain in their familiar surroundings. However, the downside is that one party has to wait, sometimes for many years, for their equity to be released, which can hinder their ability to purchase a new property. It also means the parties remain financially tied to one another, necessitating some level of communication, which does not encourage a fresh start or a clean break.

Recently, couples wishing to avoid contentious and prolonged court battles have turned to alternative dispute resolution (ADR) methods such as mediation and collaborative law. These approaches encourage cooperation and a resolution-focused practice, where parties share information voluntarily and work constructively to reach a consensus. This significantly reduces the emotional and financial costs of divorce.

At RIAA Barker Gillette (UK) LLP, we understand the stresses of navigating divorce and financial proceedings and are committed to providing clear, practical legal advice and support from start to finish. Recognising the need for cost transparency, we have introduced our new “Fixed Price Model”. This approach ensures transparency regarding the costs of our services, eliminating the extra anxiety of escalating or hidden costs. Our model covers a range of services, offering comprehensive, enhanced, and premium options for clients to choose what works best for them. From free or discounted initial consultations and financial negotiations to finalising divorce proceedings, our team of experienced family solicitors is well-equipped in all areas of family law.

Each family is unique, and there is no one-size-fits-all solution. Our approach involves crafting tailored strategies that consider the specific circumstances of each case. Whether it’s negotiating a buyout, securing a fair share of the property’s value, or arranging a Mesher order, we ensure our clients are fully informed and supported throughout the process.

From fixed-price divorce to free initial family law consultations, contact Pippa Marshall at RIAA Barker Gillette for expert legal advice.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

Redundancy facts and fictions

Posted on by
women reviewing a redundancy list

When faced with the challenging prospect of redundancy, it’s crucial to understand the legal requirements and common misconceptions surrounding the process. Whether you’re an employer trying to navigate redundancy laws or an employee facing potential redundancy, this guide will clarify the facts and debunk the myths.

Understanding redundancy: The facts

What is redundancy?

Redundancy occurs when a job or position within a business is no longer required. This can happen for several reasons, such as introducing new technology, changing working methods, restructuring, or even closing a branch or the entire business.

Employer obligations in redundancy situations

Employers have specific legal obligations when making redundancies. These include:

  • Providing clear information about why redundancies are necessary.
  • Outlining how many employees will be affected.
  • Explaining the procedures and timelines involved.
  • Clarifying how redundancy payments will be calculated.
  • Detailing the criteria used for selecting employees for redundancy.

The selection pool for redundancy

Selection for redundancy must be based on clear, objective criteria. Skills, experience, performance standards, disciplinary records, attendance, and timekeeping are all factors that can be considered. However, these criteria must be applied fairly and consistently to all employees at risk of redundancy. Employers must also be careful to avoid any form of discrimination in the selection process.

The importance of consultation

Once employees are notified of potential redundancy, employers are required to consult with them. If 20 or more employees are affected, the law mandates at least 90 days’ notice and collective consultation with trade unions or elected employee representatives. Additionally, the employer must inform the Secretary of State of the impending redundancies.

Individual consultations are required for smaller redundancies affecting fewer than 20 employees. During these consultations, employees have the right to be accompanied by a colleague or trade union representative. The consultation process should explore alternatives to redundancy, such as reassignment to different roles or relocation.

Understanding redundancy pay

Employees with at least two years of continuous service are entitled to statutory redundancy pay. The amount varies based on age, length of service, and weekly earnings:

  • Ages 17-21: Half a week’s pay for each full year worked.
  • Ages 22-40: One week’s pay for each year worked from age 22 and half a week’s pay for each full year before that.
  • Ages 41 and above: One and a half weeks# pay for each full year worked from age 41, one week’s pay for each full year worked between 22-40, and half a week’s pay for each year between 17-21.

Additionally, employees will either be required to work through their notice period or receive payment in lieu of notice. The length of this notice period is determined by an employee’s employment contract and the duration of their service with the company. They will also receive payment for any accrued but unused holiday unless asked to take this leave during their notice period.

The first £30,000 of redundancy pay is tax-free. Additionally, employers may offer enhanced redundancy packages to avoid a full redundancy process, often through a settlement agreement.

Common myths about redundancy:
The fiction

MYTHSFACTS
Redundancy equals unfair dismissal.Redundancy is a lawful form of dismissal. If carried out correctly, it is considered a fair dismissal.
Employees can be made redundant immediately.Employers must adhere to legal requirements for consultation and notice periods. Failure to do so could result in an employee filing a claim with an Employment Tribunal.
Employees cannot challenge a redundancy.Employees have the right to challenge various aspects of the redundancy process, from the justification for redundancies to the selection criteria used.
Redundancy can be used to dismiss underperforming employees.Using redundancy as a cover for performance-related dismissals is not lawful and can lead to unfair dismissal claims.
All redundant employees are entitled to redundancy pay.Only employees with two or more years of continuous service are entitled to statutory redundancy pay. It’s essential to review the employment contract to determine specific entitlements.
Redundancy only affects the newest employees.Redundancy selection should not be based solely on the “last in, first out” principle. Such an approach may expose the business to claims of unfair selection for redundancy.

Conclusion

Whether you’re an employer or an employee, navigating a redundancy situation requires careful consideration and adherence to legal requirements. Missteps can lead to costly legal challenges, so seeking professional advice is crucial to ensure the process is handled correctly.

Contact Patrick Simpson today for expert guidance on redundancy procedures and employee rights and to answer any questions you may have.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

Terms and conditions for small businesses

Posted on by
graphic of terms and conditions popping up from laptop

The business landscape, especially for small businesses, can often seem like a minefield. The key to successfully navigating this lies in establishing comprehensive standard terms and conditions (T&Cs). These T&Cs act as a compass, guiding the business relationship between you and your customers. This article delves into the importance of T&Cs, their components, and how to craft and update them effectively.

What are terms and conditions?

T&Cs, also known as business terms, terms of sale, or terms of service, are the legal contract between you and your customer for your supply of goods or services. They are the conditions on which you agree to do business with someone else, often on a non-negotiable take-it-or-leave-it basis. In the UK, businesses must have T&Cs in place to protect themselves and their customers.

The importance of terms and conditions

T&Cs are vital in setting out what you have agreed with a client or presenting the inflexible terms under which you will accept business. They define the contract, act as a record of it, set out your business procedures, protect your business and your rights and limit your liability. Even if you are selling a low-value product or service, a disagreement with a client can take up significant time and possibly lead to reputational damage. Hence, having a comprehensive set of T&Cs is good business practice and a trust-building measure with customers.

Components of terms and conditions

A well-constructed T&Cs document should include the following provisions:

Definition of the contract’s basis or subject matter

Your T&Cs should clearly state what you are selling. The products and/or services could be described in detail or referred to in another document, such as a sales brochure or your website.

Price

You should include all variations, circumstances, and provisions for price increases.

Payment terms

This section should set out how and when you want to be paid. Your contract should also include provisions for non-payment and late payment.

Definition of the services procedures

The amount of detail you should provide depends on your business. Avoid cluttering your T&Cs with half-promises and sales talk.

Provisions relating to carriage, delivery, risk and insurance

Every business selling goods has its T&Cs to cover this area of activity.

What happens while the contract runs?

If a contract for services is to take place over a period of time, you might want to explain who will be responsible for which aspects of the services while the contract runs. Depending on the nature of the service to be delivered, there can be any number of contract clauses.

Termination provisions

You need to consider the length of your contract, the trigger for termination, and the consequences of early termination.

Limitation of liability

These terms limit the damages you must pay your customer if your goods or services fail.

Protecting your business

This area is usually covered in several separate provisions. Some such provisions might include force majeure (circumstances beyond yours and the customer’s control), confidentiality, non-disclosure of information or restriction of the extent of any claim.

Intellectual property rights protection

Your intellectual property may be very valuable. The use and ownership of intellectual property are particularly important in the context of an Internet business.

The role of privacy policies

Privacy policies that outline how businesses collect, store, and use customer data are a crucial part of T&Cs. Businesses must comply with UK data protection laws, including the General Data Protection Regulation (GDPR) as present in UK law.

Compliance with UK consumer protection laws

Businesses must adhere to UK consumer protection laws, including the Consumer Rights Act, which outlines consumers’ rights when purchasing goods or services. Terms and conditions should be written in clear and concise language, and businesses should ensure that customers fully understand what they agree to when purchasing.

Crafting your terms and conditions

Creating your terms and conditions can be done in several ways. Instructing a lawyer to draft them is often recommended, as using templates and examples can result in key business activities not being protected by agreement to the terms and conditions. Regardless of the method used, businesses should ensure that their terms and conditions are tailored to their specific industry and customer base and written in clear and concise language.

Updating your terms and conditions

Once your terms and conditions are in place, it is essential to regularly review and update them to ensure that they remain relevant and effective. Businesses should review their terms and conditions at least once a year or whenever there are changes to laws or regulations that may impact them. It is also important to notify customers of any changes to the terms and conditions, including providing them with a copy of the updated document.

Legally binding nature of terms and conditions

T&Cs are legally binding and form part of the contract between you and your customer. They should be visible on your website and part of your onboarding process when you take on a new client to ensure they’re enforceable. It’s best practice to direct all new customers to your T&Cs and have them sign the document to say they have read them or create an online click agreement.

Where to place your terms and conditions

Position your T&Cs prominently on your website and ensure they’re easily accessible through hyperlinks. If you require a sign-up form from new customers, acceptance of your website terms should be mandatory, and definitive acceptance of them is sought, for example, “click this button to accept our Terms and Conditions.”

Changing your business’s terms and conditions

Most T&Cs include a provision that allows the business to change the Terms and Conditions at any time. If you have regular clients or customers, it’s best to inform them in writing that your standard T&Cs have changed and what this means for them. To avoid any misunderstandings that may lead to disputes, have the client or customer sign the new T&Cs to acknowledge receipt.

Conclusion

Having effective terms and conditions in place is essential for any UK business. They provide a clear understanding of the terms of sale or service, protect the business and customers, and ensure compliance with UK laws and regulations. By following the key considerations outlined in this guide, businesses can create terms and conditions tailored to their specific needs and customer base that provide a positive customer experience. Consider seeking legal advice if you need help drafting or updating your terms and conditions. By ensuring that your terms and conditions are effective and up to date, you can protect your business and provide your customers with a positive experience.

Speak to our head of corporate, Victoria Holland, today to discuss updating your terms and conditions today

Note: This article is not legal advice; it provides information of general interest about current legal issues.

High temperatures in the workplace

Posted on by
High temperatures in the workplace. Picture showing kitchen staff.

As summer 2024 unfolds, the UK has seen a mix of weather extremes, from torrential rains to scorching heatwaves. With increasingly hotter summers becoming the norm, managing high temperatures in the workplace is now a critical issue for employers.

While short-term solutions may help mitigate the immediate risks of a heatwave, businesses must consider the broader implications of climate change and develop long-term strategies to maintain safe and comfortable working environments.

Although the UK has no specific maximum working temperature law, employers are legally required to provide a safe and healthy working environment under the Health and Safety at Work etc. Act 1974. This obligation extends to protecting employees from excessive heat, whether they are working on-site or from home.

The Workplace (Health, Safety, and Welfare) Regulations 1992 further mandate that employers ensure reasonable temperatures in all indoor workplaces. What constitutes a “reasonable” temperature varies, though, depending on the work activity and environmental conditions.

Employers must assess risks related to workplace temperature, treating heat as a hazard with the same legal obligations as any other. Special consideration is required for vulnerable groups, such as pregnant workers, new mothers, and employees with health conditions or disabilities that could be exacerbated by extreme heat. If a risk cannot be mitigated, employers must allow affected employees to leave the workplace with full pay until it is safe to return.

The complexities of workplace temperature management

Karen Cole, Head of Employment at RIAA Barker Gillette (UK), explains, “The real challenge for employers is the lack of a universal standard for what constitutes ‘too hot’ in the workplace. Risk assessments must be tailored to the specific circumstances of each business. Factors such as the nature of the work, physical demands, and individual employee characteristics all play a role.”

Higher temperatures may be acceptable in workplaces that naturally generate heat, like bakeries or foundries, with proper protections in place. Those same temperatures could, however, be hazardous in office or retail settings. The Health and Safety Executive has consistently urged employers to protect workers during extreme heat, and MPs have called for legislation to enforce a maximum workplace temperature.

Proactive strategies for employers

Employers are encouraged to take a proactive approach to managing workplace temperatures. “The sensible approach is to identify and address heat-related risks before the temperatures rise,” says Karen Cole. “Employers should listen to their employees and work collaboratively to develop long-term strategies for a safe and healthy work environment. Regularly updating policies and ensuring that everyone understands their rights during hot weather is crucial.”

Effective measures to beat the heat

To help manage high temperatures, employers can implement several control measures, including:

  • Installing adequate ventilation or air conditioning systems
  • Providing access to cool drinking water
  • Ensuring workstations are away from direct sunlight or heat-generating machinery
  • Offering more frequent breaks
  • Creating cooler rest areas
  • Adjusting work schedules to cooler times of the day
  • Relaxing dress codes during heatwaves
  • Providing cooling equipment, such as fans or cooling vests, where appropriate

Conclusion

As temperatures continue to rise, employers’ challenges will only increase. By taking a proactive, informed approach, businesses can ensure the safety and well-being of their employees while staying compliant with legal obligations.

Contact Karen Cole at RIAA Barker Gillette UK today for expert advice, tailored information, and industry-specific policies.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

Stay in touch

Subscribe to our newsletter

Stay in touch

By completing your details and submitting this form you confirm you are happy for us to send you marketing communications and that you agree to our Website Privacy Policy and Legal Notice and to us using Mailchimp to process your data.


Sending

News/Insight

  • Understanding Court of Protection applications in England and Wales
    When someone can no longer make decisions for themselves and has not put a Lasting Power of Attorney in place, the Court of Protection can step in. This article explains what the Court of Protection does, when an application may be needed, and what t


    Read more

  • Warranties and indemnities: Key protections in share and asset sales
    An overview of warranties and indemnities in share and asset sales, explaining key differences, common protections, liability limits and risk allocation.


    Read more

  • The Employment Rights Act is a call to action for employers 
    A new year, a new employment framework: what employers need to know about the Employment Rights Act passed by parliament in December 2025.


    Read more

  • Dilapidations explained: What commercial tenants and landlords need to know
    Dilapidations are a common source of dispute at the end of a commercial lease. They can involve significant sums of money and often come as an unwelcome surprise to tenants who believed they had left a property in reasonable condition. Understanding


    Read more

  • The role of due diligence in corporate transactions
    In corporate transactions, due diligence is a key stage that usually follows agreement of Heads of Terms, allowing the Buyer to investigate the target company or its assets before committing to the deal.


    Read more

What they say...

  • Sharla Munian, February 2026
    Outstanding Legal Support and a Brilliant Result “I cannot recommend RIAA Barker Gillette highly enough. My solicitor supported me throughout a very challenging property litigation matter, and thanks to her expertise, dedication, and strategic

  • Client, February 2026
    Very good service in disagreement with architect “RIAA assisted me in a conflict I had with my architect, who wanted to overcharge me. The end result was satisfactory, with invoices reasonable despite being slightly higher than expected!”

  • Sharla Munian, February 2026
    Outstanding Solicitor Who Delivered the Outcome I Hoped For “After a number of years navigating a complex financial settlement following my separation, my solicitor has been incredible from start to finish. Their professionalism, patience, and

  • Peter, February 2026
    Advice on potential claims by an employee & settlement negotiation “Clear, efficient advice and timely execution. I would highly recommend Patrick and RIAA Barker Gillette.”

  • Amish Bristol, January 2026
    Absolutely brilliant, fast, professional, clear and delivered a robust service “Recent mortgage oversight from Ben Marks and Anne was superbly dealt with, and I intend on moving all my business to them. For a big firm, they really do pay attent

Read more