What Happens to my Estate if I Don’t Make a Will?

What Happens to my Estate if I Don’t Make a Will?

If you die without leaving a valid Will, the law sets out who is entitled to your Estate and there is a danger that your spouse or partner may not receive everything.  The following is a basic guide which sets out the general law; there may be exceptions and professional advice should always be taken and a Will prepared when necessary.

If you are married or in a civil partnership and have children:

Your spouse or partner will receive all of your personal possessions as well as up to £250,000 of your capital assets.  The remainder of your estate will be divided in half and split between your children and your spouse or partner.  Your spouse’s half is placed on trust and your spouse receives the income only.

If you are married or in a civil partnership with no children:

Your spouse or partner will receive all of your personal possessions as well as up to £450,000 of your capital assets.  Your spouse or partner will also receive half of anything remaining.  The other half will pass to your parents or, if none living, your brothers and sisters or their children.

If you are married or in a civil partnership but have no close relatives:

Your spouse will receive everything.

If you are unmarried with children:

Everything goes to your children at 18 or earlier marriage.

If you are unmarried with no children:

Your Estate will pass to the first of the following family members who are living: parents; your brothers and sisters or their children; grandparents; uncles and aunts or their children; the Crown.

Other Benefits to Making a Will

If you have children, you can express your wishes about who you would like to look after them.  This can be a difficult decision, but need not prevent you making a Will now, as your wishes can be set out in a separate Letter of Wishes, which can be changed fairly easily and at little or no cost, whenever you need to.

A Will also gives you the opportunity to leave specific items of financial or sentimental value to the people you choose. 

You can also set out who will be responsible for administering your Estate; if you do not have a valid Will it will take longer to finalise your affairs and could cause additional distress for your family. 

A Will can also be important if the value of your Estate is above the Inheritance Tax threshold as it can help you mitigate the amount of Inheritance Tax that will be payable.  Professional advice can assist you in reducing the size of your Estate before your death in such a way that will benefit your loved ones during your lifetime, ensure you have sufficient funds to live on, and reduce the amount of Inheritance Tax that will be payable.

If you are concerned that the value of your property may be lost or reduced if you have care home fees to pay, a Will can be drawn in such a way as to minimise that risk and ensure, as far as possible, that the value of your property will be preserved.

David Goldsmith is the Solicitor responsible for Wills and Probate at DGR Law Solicitors, Marlborough and can be contacted on 01672-511797 or david@dgrlaw.co.uk if you would like further information.

Catastrophic Injury Claims

CATASTROPHIC INJURY CLAIMS

I am often asked how catastrophic and high value injury claims differ from other cases.

I have represented Clients in all areas of litigation for over 20 years and there have been a lot of changes to Court procedure over this period.

Catastrophic and high value injury claims are dealt with under pre-action protocols, introduced by Lord Woolf in 1996.  The purpose of the protocol is to build on and increase the benefits of early but well informed settlement which genuinely satisfy both parties to the dispute.

The aims of pre-action protocols are:

• more pre-action contact between the parties
• better and earlier exchange of information
• better pre-action investigation by both sides
• to put the parties in a position where they may be able to settle casesfairly and early without litigation
• to enable proceedings to run to the court’s timetable and efficiently, if litigation does become necessary
•  to promote the provision of medical or rehabilitation treatment (not just in
  high value cases) 
• to address the needs of the claimant

The emphasis is therefore on greater and more effective communication between the parties representatives, a thorough investigation of the issues and progression towards settlement without the necessity of a Court trial.

It is important to identify the issues at an early stage of a case relating to liability and quantum.

If liability for an incident is likely to be in issue, evidence will be required to establish how the incident happened and why the other party was

responsible.

If liability is not in issue, the investigation will focus on injuries sustained and loss.

In catastrophic and high value injury claims, to prove that the injuries occurred as a direct result of the accident it is necessary to obtain Expert Medical Evidence from a number of different Consultants.  For example, an Orthopaedic Surgeon should report on injuries to bones and joints; a Psychiatrist on Post-Traumatic Stress; an Occupational Therapist or Nursing Expert regarding care and so on.

Under the Protocol, the parties are encouraged to appoint one expert to write a single Report; however, with high value cases, it is common for the parties to appoint their own experts covering the different areas of expert evidence.

By way of example, I recently represented a Claimant (aged 46) who had a motorcycle accident in May 2009. He sustained an ankle fracture which resulted in a below-the-knee amputation of part of his left leg. 

Following the amputation procedure, he suffered and continues to suffer from severe phantom limb pain. 

This affected every aspect of his life and Reports were required from Experts in Orthopaedics, Prosthetics, Care, Architecture, Rehabilitation, Pain Relief and Employment.

In all, we amassed 19 Reports and Updated Reports over a 3-year period to demonstrate the past and future impact and consequences of the injury and resulting phantom limb pain. The Reports were disclosed to the other party in exchange for their Reports and resulted in agreement in a number of key areas.

In accordance with the aim of the Protocol, a Round Table Meeting was held in July of this year and after negotiations the case settled for a payment in damages of £800,000 plus legal costs.

The settlement provides the Claimant with financial security and private treatment to relieve the pain including the provision of prosthesis for the rest of his life.

The successful outcome was achieved without trial and confirms the benefits of implementing the protocol.

David Goldsmith is the Partner responsible for Personal Injury at DGR Law Solicitors, Marlborough and can be contacted on 01672-511797 or david@dgrlaw.co.uk, if you would like further information.

Court of Protection

CIVIL LITIGATION & COURT OF PROTECTION

In addition to representing people who have suffered serious and catastrophic personal, mental and bodily injury due to someone else’s negligence, I specialise in Civil Litigation, Dispute Resolution and Family Law work which is, primarily County Court and High Court cases.  These include Directors Disputes, Partnership Disputes, Property and Land Disputes, Will & Probate Disputes, Debt Recovery and Family, Separation and Divorce. For these cases, the emphasis is on resolution by negotiation or mediation. Within this area of my Practice I represent people involved with cases that are determined by the Court of Protection in London.

The Court of Protection is a highly specialised Court which has recently moved to the Thomas More Building, Royal Courts of Justice, London but also has Regional Courts, where cases can be allocated, such as Southampton. The Court of Protection works closely with the Office for the Public Guardian (OPG) to deal with cases under the Mental Capacity Act 2005. For example the Court will deal with cases where a person lacks the necessary mental capacity to make decisions in relation to property, financial matters and personal welfare, ie. care and medical treatment.

There have been a number of press articles written about the Court of Protection in recent years and the ‘’secrecy’’ associated with the Court and its process; however, the Court has a difficult job in deciding whether or not an individual lacks capacity and difficult issues to consider and weigh up on a day-to-day basis and I would prefer to leave the debate to others.

My professional experience has been that the Court process demands a proper and thorough investigation of a case, with good witness evidence and in some cases expert evidence from specialist psychiatrists dealing with the issue of capacity. Therefore, it is incumbent on the Solicitor to prepare the case using exacting standards before it is presented to the Court.

I have recently been asked to represent a family to challenge the appointment of an Attorney under an Enduring Power of Attorney and to apply for a Statutory Will.  We successfully contested the appointment of the Attorney and succeeded in obtaining a Statutory Will to replace the former Will.

A Statutory Will is a Will made on behalf of an individual who is unable to prepare a Will themselves, due to lack of mental capacity. The situation is complicated by the fact that a person may lack capacity to manage his or her own property and affairs, but still have the necessary capacity to make a valid Will. Therefore, when considering whether a Statutory Will can be made for a person, his or her lack of capacity in respect of the making of a Will must be considered and appropriate evidence provided.

I should say that the Court process is based around completing special forms designed for the Court of Protection and drafting these demands concentration and attention to detail.

Every new case before the Court has to be dealt with on its merits and investigated properly, but I have every confidence in the Court of Protection to achieve the correct outcome where difficult issues of capacity take centre stage.

Finally, cases involving lack of capacity should be distinguished from the powers of the High Court to challenge the appointment of Personal Representatives, challenge the validity of a Will or to apply to rectify a Will.  I have dealt with a number of cases where a Will is disputed on the grounds of undue influence, fraud, lack of capacity to make a Will or that the Will itself was not executed properly. These cases are known as Probate Claims and arise following the death of the Testator, whereas the Court of Protection deals with pre-probate situations.

If you have any questions regarding Court of Protection cases or Will Disputes please contact David Goldsmith, Partner and Head of Catastrophic Injury, Litigation and Dispute Resolution Services at DGR Law Solicitors, Marlborough and can be contacted on 01672-511797 or david@dgrlaw.co.uk.

Restrictive Covenants

If you are thinking about building an Extension to your Home, don’t forget about Restrictive Covenants.

As well as complying with Planning and Building Regulations obligations, you should also consider whether a Restrictive Covenant prohibits alterations to your property.

What is a Restrictive Covenant?

Covenants can be found in the title to your property.  They are rules attaching to the land, which the property owner must observe.  A restrictive covenant is prohibitive in nature, requiring that the property owner refrains from carrying out a certain act.  As it attaches to the land itself, the restrictive covenant is passed on from owner to owner. 

Restrictive covenants are historic in nature.  Prior to planning legislation, restrictive covenants were imposed by wealthy landowners selling off parts of their land, in order to retain some control over the land’s development, with a view to preserving the nature or value of it.  Effectively, covenants are a form of private planning control.

Types of Restrictive Covenant

The wording of the covenant itself may be final; a typical Restrictive Covenant could read along the lines of: “not to make any structural alteration or addition to the exterior of any existing building or structure”.  Alternatively, it may include words like: “not without consent”, so that an Extension may be permitted, but only with the prior consent of a named party.

Restrictive Covenants requiring Consent

If consent is required, the Restrictive Covenant may or may not include words stating that “such consent may not be unreasonably withheld”.  In cases where there is no such requirement of reasonableness, the case of Rickman –v- Brudenell-Bruce, Earl of Cardigan (2005) decided that it may, nevertheless, be possible to imply a term requiring that the withholding of the consent must be reasonable, if it can be shown that this was the intention of the original parties.  Each case will be considered on its own facts.

Why Should I Comply with the Restrictive Covenant?

If you went ahead with building your Extension in breach of a Restrictive Covenant, the party entitled to enforce the covenant could apply for an Injunction preventing the building work continuing, or, where the Extension had already been built, requiring its removal.  They would also be entitled to damages and their legal costs.

How Can I still Build my Extension?

If you are already in breach of a Restrictive Covenant, or the party entitled to enforce the covenant is refusing to give their consent, you could apply to the Lands Tribunal to discharge or modify the covenant.  To succeed, you must be able to satisfy the Lands Tribunal on one of the following grounds:

1.   That changes in the character of the property, or neighbourhood itself, has effectively made the covenant obsolete.

2.   That the covenant provides no practical benefit, of a substantial value, to the party entitled to enforce the covenant.

3.   That the party who is entitled to enforce the covenant has agreed to its discharge or modification.

4.   That there is no detriment to the party entitled to enforce the covenant if it were discharged or modified.

If the Lands Tribunal decides that the covenant be discharged or modified, compensation may be awarded to the party who is no longer able to enforce the covenant.

David Goldsmith is responsible for Property, Wills and Probate at DGR Law Solicitors, Marlborough and can be contacted on 01672-511797 or david@dgrlaw.co.uk.

Compromise Agreements – A practical solution to work place disputes

What are compromise agreements?

A compromise agreement is a contract setting out the terms of how an employment relationship will end; they are a way of resolving work place disagreements between an employee and employer which could amount to a legal claim, often for unfair dismissal.  Additionally a compromise agreement provides a means for an employer to ring-fence any potential future employment claims and liabilities by an employee.

Often they will arise when an employer invites the employee for an 'off the record discussion', where they will normally be offered inducements over their statutory entitlement, usually financial, to agree to a clean break from the employment relationship. Sometimes an employee will propose a compromise agreement to their employer, but any offer is a clear statement that they wish to leave and the timing and circumstances should be carefully considered before taking this route.

What are the benefits of an employee signing a compromise agreement?

When an employee is going through a process, such as a grievance or disciplinary hearing, they will be facing some difficult choices; should they stay and fight, with the risk of being dismissed; or do they leave; or should they bring legal action? The reality is that the employee will be contemplating re-entering the jobs market with a damaged reputation, or the lack of a suitable reference. When negotiating a compromise agreement it is common to ask for the inclusion of an agreed reference, agreed statements dealing with the nature of the employee's departure and clauses preventing derogatory comments.

In compensation for agreeing not to bring a claim an employee should expect to be offered a financial award, and up to £30,000 of any ex gratia award is tax free. What constitutes a reasonable amount will depend upon the facts of matter, namely how strong a claim the employee would be relinquishing.

Many employees do not appreciate, until it is too late, that their contract of employment contains restrictive covenants preventing them from working in their employer's industry for a number of months, or often years, after having ceased employment. Negotiating a reduction in the length of the restrictive covenants as an inducement to sign a compromise agreement is usual and what represents a reasonable reduction will depend on the facts of the matter.

What are the benefits of a compromise agreement to an employer?

A compromise agreement allows an employer to ring-fence their employment liability to their employee. To an extent, a compromise agreement can be viewed as an exercise in commercial expediency, rather like an out of court settlement. Why is this? First, they provide some certainty, no matter how well an employer believes they have followed the statutory employment process they may still find themselves having to defend a claim. A compromise agreement can prevent this. Secondly, they are time efficient in contrast to proceedings taken through a tribunal. Thirdly, as a consequence of the above two points they are usually the most cost effective option for an employer, who can rarely recover their legal costs in an employment tribunal, even if they succeed.

The role of an employment lawyer

Whether you are an employee or an employer there should be some input from an employment lawyer; to be legally binding an employee must have gained independent legal advice on the consequences of a compromise agreement. Often the employee and employer are too close to the matter and an impartial negotiator, who can assess the strength of the parties’ positions, can ensure that the most favourable outcome in the circumstances can be achieved.

For further information Alex Atkins can be contacted at DGR Law Solicitors, Marlborough, on 01672 511797, or alex@dgrlaw.co.uk

Brain Injuries

BRAIN INJURY CLAIMS (UPDATE)

By David Goldsmith – Partner of DGR Law, Marlborough

As a ‘follow-up’ to my recent article regarding brain injury claims, I am pleased to report that I have made excellent progress in resolving the claim entirely. 

To recap, brain injury (as opposed to brain damage) cases are complicated due to the severity of injury, treatment and prognosis for the future. 

The most common type of brain injury that I see is what is known as ‘DAI’ or Diffuse Axonal Injury, which occurs in severe head traumas. In DAI cases, the injury affects a widespread area of the brain leading to long term problems with cognitive function and memory. 

This type of injury can occur in an instant and often as result of a negligent act or driver error. By way of example, my Client took a lift to work with a friend. She was sitting in the front passenger seat and importantly was wearing a seatbelt. It was early morning and her friend was travelling too fast on a narrow country road, when the car clipped a storm drain kerb on the side of the road. The car swerved uncontrollably along the road and hit a van coming in the opposite direction, which had mounted the verge to try and avoid a collision. 

The accident was caused by driver error because the friend was driving at over 70 mph on a country road without any thought for the conditions or consequences. The professional work that I do is often described as a ‘distress purchase’ i.e. people only seek my help when things go wrong; however, this case demonstrates that the path of an individual’s life and those around them can be altered so dramatically in a few seconds through absolutely no fault of their own and my role is to rebuild people’s lives as best possible. 

My client was 18 years old at the time and suffered a Diffuse Axonal Brain Injury as a result of the impact. She survived due to the fact that she was wearing a seat belt; however, she spent 10 months in hospital, most of this in intensive care and now requires full time care and treatment to assist with daily living.

I was asked to help from the outset and visited my Client on numerous occasions whilst she was recuperating in hospital and many times since, to build the picture of her life before the accident and how her life is now. 

It is difficult to believe; however, the insurers for the driver argued that he was not to blame for the accident and we had to fight to obtain justice. After a long battle, my Client was awarded Judgment by the High Court in the Spring of this year which confirmed that the driver caused the accident due to his negligent driving i.e. he was going too fast. 

The investigation regarding the injury took many years to finalise with expert evidence in a number of different areas including: -

·         Neurology

·         Care

·         Orthopaedics

·         Neuropsychology

·         Neuropsychiatry

·         Speech and Language Therapy

·         Finance and Investment 

Witness statements have also been obtained from members of the family, friends and former work colleagues as evidence of this life changing event. 

On 19^th December 2012, I attended a meeting with the Solicitors for the Defendant and after lengthy discussions; we agreed an outline settlement to the value of around £3.5 Million to cover damages, future care expenses and costs for the remainder of my Client’s life.

Care costs, which are indexed linked, will be paid annually and the capital sum will be invested for the benefit of my Client going forward. 

There is a lot of work still to do because the outline settlement is subject to Approval by a High Court Judge and the appointment of a Deputy to manage the fund. In this regard, I am currently in the process of preparing an application to the Court with proposals for investment of capital. 

This represents an excellent and comprehensive outcome and guarantees that my Client will receive the best care and treatment available from case managers and carers and to enhance the quality of her life and the lives of family members.

Finally, I would like to highlight the work of charities in this area to assist where possible in raising awareness.

In particular, I would like to mention Headway Swindon and District’ of Headway House, 17B Headlands Trading, Headlands Grove, Swindon, Wilts SN2 7JQ (Tel: 01793  436 908) which is a registered charity carrying out excellent work supporting people with brain injury to attain the highest possible quality of life, to assist with independent living and to initiate activities and campaigns to reduce the incidence of brain injury and to help improve services for people with brain injury, their families and carers. 

Headway promotes improved approaches of brain injury screening, acute care, assessment, rehabilitation and community regeneration. 

Headway deals with many referrals from medical professionals but can often be the first port of call for people with brain injury and their families and the services that they provide as a registered charity is invaluable. 

For further information please contact David Goldsmith at DGR LAW e-mail - david@dgrlaw.co.uk or telephone – 01672 511797.

Practical Advice after the Loss of a Loved One

Practical Advice after the Loss of a Loved One

There are many matters of a personal, administrative and legal nature which require attention following the loss of a loved one.  Some tasks can be difficult or upsetting; some time-consuming; others can be complex or legally challenging, particularly if you’re not used to dealing with paperwork and finances.  It is easy to feel overwhelmed or uncertain at an already very difficult time.

It is as important to ensure your personal needs are met as it is to put the deceased’s affairs in order.  At a time when adjustments are having to be made, ordinary tasks can be upsetting or unusually burdensome.  Even when you have prepared for the inevitable, the reality may be harder than imagined.  As well as assisting with the legalities, we can help you with notifying friends and family, arranging for some extra help around the home or even moving home.

If your financial circumstances have changed, we can assist with completion of the necessary forms if you are entitled to benefits or tax discounts.  We can also liaise with the relevant agencies if you are having trouble making ends meet.

There are inevitably certain matters that need attention during the week following the death of a loved one and it can be hard to deal with these at a time when your emotions are still very raw.  We can help you through the death registration formalities and can assist you with finding a local Funeral Director you feel comfortable with.  There are many alternative funeral funding methods which will not leave you out-of-pocket and we can consider your entitlement to these.

Many authorities and institutions will need to be notified, from HM Revenue & Customs to the Passport Agency.  We can ensure that all necessary parties are notified as quickly as possible to avoid further upset and can also contact the relevant organisations to prevent unwanted calls and mail being sent to the deceased.

It is not essential to instruct a Solicitor to deal with the deceased’s affairs; this is particularly so when the Estate is small or uncomplicated. But where the prospect of dealing with the deceased’s Estate seems daunting or complex, we can help you with the various stages of Administration, whether or not there is a Will.

The Pre-Grant stage begins with ensuring valuable property and items are secured and insured, as necessary, along with obtaining valuations of assets.  We can arrange for valuable items to be identified and valued, as well as the removal and sale or storage of furniture and other household items or motor vehicles. 

There will be forms to be completed whether or not you wish to apply for the Grant personally and regardless of whether Inheritance Tax is payable.  We offer a set fee of £500 plus vat and Probate Registry charges for the preparation and submission of all forms necessary to obtain the Grant of Probate or Letters of Administration for small Estates where no Inheritance Tax is payable.

The final part of the Estate Administration deals with collecting in the assets, paying the debts and distributing the Estate to the Beneficiaries either in accordance with the terms of the Will or under intestacy law.  If there is a property to sell, we can deal with the transaction on your behalf.  We will also put in place any necessary Insurance Policies where there are missing or unknown creditors or beneficiaries of the Estate.

If you would like any further guidance, please contact David Goldsmith who is the Partner responsible for Property, Wills and Probate at DGR Law Solicitors, Marlborough on david@dgrlaw.co.uk or 01672-511797.

Top Conveyancing Tips for a Smooth Property Sale

Top Conveyancing Tips for a Smooth Property Sale

Easter is historically a time of year when a surge of new properties come onto the market, with buyers and sellers keen to move before the summer holidays.

To help speed up the conveyancing process and make the transaction as smooth and stress-free as possible, we have prepared the following guide.  We hope you will find this useful if you are planning to sell your home:-

1.         There are certain documents relating to your property that your buyer’s Solicitor will always want to see.  It is therefore a good idea to try to ensure that all of these are available before you find a buyer.  This will avoid delay during the transaction while copies are obtained from third parties.  These documents include: Planning Permissions or Building Regulations Completion Certificates for building or structural work you have carried out; FENSA Certificates for new windows or glazing; Guarantees for cavity wall or loft insulation;  NICEIC Certificates for electrical works; or Gas Safety Certificates from registered CORGI engineers for installations to your gas supply.

2.         If you know which Solicitor you would like to instruct, it is best to speak to them before you find a buyer.  A proactive Solicitor can send you Property Information Forms to complete in advance, so that you can pass them back to your Solicitor as soon as a buyer is found.  This will enable your Solicitor to forward Contract papers to your buyer’s Solicitor without delay.  The Forms will also guide you on the documents you will need to provide, described above.

3.        You should ensure that all questions on the Property Information Forms are answered.  If there are any questions you are uncertain about, your Solicitor can help you provide the correct information.  If the Forms are sent to your buyer's Solicitor with unanswered questions, at a later stage of the transaction your buyer’s Solicitor will only refer these back to you and ask that replies be provided.

4.        Choosing a local Solicitor can often be beneficial.  Their knowledge of the area could save you time and money compared with firms outside the area, who may need to make enquiries in respect of matters already known locally.  It can also give you peace of mind knowing you can call in to see your Solicitor during your transaction and build a lasting business relationship with someone you know.

5.       Solicitors who are members of the Law Society's Conveyancing Quality Scheme have passed rigorous quality assessments and adhere to prudent and efficient conveyancing procedures.  Instructing members of the Scheme can assist with the smooth running of your transaction.  DGR Law are proud to have been awarded accreditation and membership of the Scheme.

6.        There are often time constraints to property sales and transactions concluded swiftly and efficiently are unarguably most favourable.  It can, however, be counterproductive to set deadlines for exchange and completion that are not absolutely essential as unworkable timescales can needlessly cause an increase in stress levels and discourage your buyer.

DGR Law are committed to providing our clients with a high quality, professional and consistent service.  If you have any questions or would like any further information, please contact David Goldsmith who is the Partner responsible for Property, Wills and Probate at DGR Law Solicitors, Marlborough at david@dgrlaw.co.uk or on 01672-511797.

Redundancy – some important points to consider for both employer and employee

Redundancy – some important points to consider for both employer and employee

On the 6^th April the law regarding redundancies changed.   It is not a cheerful subject  but, for many, redundancy remains a pertinent one. For an employer redundancy can be a mine field, catching the unwary, where without proper regard to the law, even genuine attempts to do the best for their employees can end up in legal action.  For an employee it can, quite naturally, be a stressful time, with their job in the balance, and events seemingly out of their control. This article is not intended to give an overview of redundancy, more to highlight some important points and pitfalls, which both employee and employer should be aware of.

The point on which employers often fall down is that even if dismissals are on genuine grounds of redundancy they may still be unfair if the employer fails to consult with individuals, fails to properly identify the correct pool of employees to select, fails to apply objective selection criteria for redundancy, or fails to offer suitable alternative employment.  I shall look briefly at consultation and selection.

Consultation

The formality and length of consultation will depend on how many proposed redundancies there are.  But, in all situations, an employer must consult with his employees when their proposals to dismiss are in a formative stage. This is because consultations must be fair and genuine. In addition, where there are twenty or more proposed redundancies consultation must be meaningful, and must cover ways of avoiding dismissals, reducing the numbers of dismissals and mitigating the consequences of dismissals.  It would be good practice for all consultations to cover these points.

An employer should include in the consultation all those employees who are affected by the proposed dismissal, or those who may be affected by any proposed measure.  It should not be limited to only those the employer proposes to make redundant.

These affected employees should be allowed to express their views; and themselves or their representatives should be involved in the process and be able to give ideas.  As such, the employer should avoid agenda, or talk, of finalising decisions, which give the impression that consultation will not change anything.

Where there are more than 20 proposed dismissals the employer must consult with employee representatives. As an employee, your representatives will usually be trade union representatives. Where there is no current representative all the affected employees should be free to vote and stand as a representative.

Selection

An Employer must disclose in writing the proposed method by which they will select the employees for redundancy.  The selection must be done fairly and the employer must genuinely apply their mind to which employees should be selected for the pool for consideration for redundancy.  Many employers will have an established procedure, which should be followed provided it is appropriate and during the consultation period the employer and employee representatives should have established what redundancy selection procedure is to be followed.

Choosing selection criteria can be tricky, and the more subjective the criteria the more consultation with affected employees is required.  Most selection used to be based on the principle of ‘last in first out’, but now it is more common to use scoring systems based on criteria such as skills, standards of work and disciplinary record.

While it would seem straight forward to select objective criteria, there are a number of dangers.  Some criteria could lead to discrimination claims, for example employers must be careful when considering criterion based on length of service, as this could amount to age discrimination. Equally, employers can take the objectivity test too far. This is shown in a recent case where the employer selected a competency assessment, together with the disciplinary record and absence record as their redundancy selection criteria. The employer brought in outside professionals and HR specialists to carry out competency assessment, which included a test, interview and group discussion. The result was a number of the best performing employees were selected, due to low scores, and dismissed.   Subsequently, the Employment Tribunal and Employment Appeals Tribunal held the dismissals were unfair.

For further information Alex Atkins can be contacted at DGR Law Solicitors, Marlborough, on 01672 511797, or alex@dgrlaw.co.uk