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Missing persons: how the law has changed to help families

January 19, 2015 by Guest contributor

Missing persons: how the law has changed to help families{{}}In November last year, the National Crime Agency reported that someone is recorded as missing in the UK every two minutes. Its findings were based on research released by the National Crime Agency’s UK Missing Persons Bureau, which analysed statistics for the year 2012–2013.

This means that, on average, police forces in the UK are dealing with some 838 missing person reports every day. Although the vast majority of those reported missing are found safe and well, a small number (in the region of 3%) remain unfound.

Not knowing what has happened to a loved one is a distressing and traumatic experience. It also poses practical difficulties for those left behind in dealing with the missing person’s financial affairs.

Difficult questions may need to be addressed such as when a life insurance policy should be paid out and when a missing person’s marriage is deemed to have ended.

Previously the law in this respect was complex and piecemeal. However, the law has recently changed. The Presumption of Death Act 2013 (the “Act”) came into force on 1 October 2014 and seeks to assist families by creating a clear and simple process so they can deal practically with cases of missing loved ones who are sadly presumed to be dead.

A successful claim under the Act grants the applicant a declaration as to the legal status of the missing person, which then allows them to manage that person’s financial affairs.   

When does the Act apply?

The Act applies where a missing person:

  1. Is thought to have died; or
  2. Has not been known to be alive for a period of at least seven years.

In these scenarios any person can apply to the High Court for a declaration that the missing person is presumed dead. 

What are the requirements if an application is to succeed?

  1. Any person can make the application;
  2. The missing person must have treated England and Wales as their permanent home (or have lived and had a substantial connection there) on the day they were last known to be alive;
  3. The missing person must have been habitually resident in England and Wales throughout the period of one year ending with the day on which they were last known to be alive;
  4. If the application is made by the missing person’s spouse or civil partner it is sufficient if the applicant regards England and Wales as their permanent home on the day the application is made or the applicant has been habitually resident in England and Wales throughout the period of one year ending with the day of the application;
  5. The Court is unable to hear an application made by someone who is not a close family member unless the Court is of the view that the applicant has a sufficient interest in the outcome of the proceedings.

What is the outcome of a successful application?

If the Court is satisfied that the missing person is dead or has not been known to be alive for a period of at least seven years it must make a declaration. The declaration must set out the date and time of the missing person’s presumed death. 

What is the effect of a declaration of presumption of death?

  1. It concludes the date and time of the missing person’s presumed death;
  2. It is effective for all purposes e.g. the ending of a marriage or the acquisition of an interest in property;
  3. The Registrar General must maintain a Register of Presumed Deaths and the declaration will be recorded there. 

A step forward

The Act simplifies (for the missing person’s family or other interested party) the process of obtaining a declaration of presumed death. It allows one declaration to be obtained for all purposes and means that important practical arrangements in relation to the missing person’s affairs can be made. 

The Act is a certainly a good start, but there are still issues that it does not resolve. For example, in the seven-year period before an application can be made it would help if the Act implemented some form of guardianship scheme allowing a missing person’s affairs to be managed (with supervision) until such time as a declaration can be applied for and granted. It is hoped that the legislation will be further developed in this area in the not too distant future.

Copyright © 2015 Anna Sutcliffe, a specialist inheritance solicitor with Wright Hassall.

What must your business do to comply with the EU Consumer Rights Directive 2014?

January 13, 2015 by Guest contributor

What must your business do to comply with the EU Consumer Rights Directive 2014?{{}}New EU Consumer Rights Directives came into effect on the 13 June 2014, but many online retailers are still not compliant. So, how did the rules change?

Update terms & conditions for delivery and cancellation

  • Cancellation periods: Increased from seven to 14 days. If you don’t specify the cancellation period customers have a one-year return period automatically.
  • Refunds: Refunds must include the standard delivery charge. Buyers choosing more expensive delivery options are only entitled to a refund of standard postage.
  • Delivery dates: Orders must be delivered without undue delays within 30 days from date of purchase. Elongated delivery periods have to be clearly agreed to by the shopper upfront (ie hiding long delivery schedules in T&Cs isn't sufficient).

Online store compliance

  • T&C agreement: Getting a shopper’s agreement to your terms and conditions at the checkout, prior to order submission, is now mandatory. Insert a tick-box.
  • Opt-in boxes un-checked: Customers must give explicit permission to any optional extra charges or for signing-up to additional services or marketing communications.
  • Clear agreement to pay: Customers must be in no doubt that placing an order is an agreement to pay. Use strongly worded checkout buttons committing the buyer to pay such as, 'Pay Now', 'Pay for Order' or 'Secure Payment' in place of 'Place Order' or 'Buy Now'.
  • Card processing fees: Merchants may only pass on card processing surcharges equivalent to the charge they incur from their payment provider.
  • Full order breakdown: A complete record of everything they're agreeing to purchase must be issued to the customer in a 'durable medium', such as paper invoice or email receipt.
  • No hidden charges: All costs are to be clearly declared upfront prior to order placement. Hidden costs for taxes, shipping and surcharges in T&Cs aren't acceptable and the customer won't be obliged to pay any extra.
  • Simple returns procedure: A straightforward returns form, gathering only the information necessary to process the return, must be easily available to download from your website, or you need to offer an online form.
  • Customer service phone numbers: Customer care and support numbers must be charged at the standard network rate and not operated as premium rate numbers.

The checklist above covers the key issues of the new Directive that affect ecommerce traders, many of whom may unknowingly be at odds with this latest round of consumer rights changes. You can tweet me on @ShopIntegrator with any comments, or your own experiences with these new regulations.

Copyright © 2015 Simon Horton, founder of hosted shopping cart ecommerce plug-in ShopIntegrator.

Further reading

Three top tips for an effective business plan

January 07, 2015 by Guest contributor

Three top tips for an effective business plan{{}}Not only is a business plan the single most important document you need in order to attract potential investors to help fund your business, it also lays out clear objectives and strategies that act as a blueprint for your success.

Research has shown that start-ups who have a business plan raise twice as much capital as those without one so that is a testament to the importance of getting it right. So, here is some advice on the key points you should keep to ensure that you have a clear, well-structured and effective business plan.

1. Don’t underestimate the importance of the executive summary

The executive summary forms the introduction of a business plan and if not adequately presented could also be the last part your potential investor reads. Here, present the outline of your business, a description of the product or service you’re offering and details about the investment you’re seeking. Make it clear and concise – you have one chance to capture their attention. This section is you making your ‘first impression’ so it pays to get this right, literally.

2. Be realistic about your financial projections

Although these numbers are estimates, you need to be able to justify them in detail to potential investors so be realistic! Projections must accommodate for employee salaries and overhead costs, revenue and sales, the percentage of return you expect from your product/service and your break-even point, ie the point when gains will equal losses.

3. Be thorough about your target markets

Explaining in detail who your target market is will demonstrate your business’s chances for success to investors. Be clear about the strategy you’ll employ to attract their attention and consider what areas within that market you’ll focus on to drive exposure and sales.

Knowing your customer is key to any successful business. Impress investors by showing them how much you know about spending in your target market. Also, if you have direct competitors, don’t be afraid to bring them up proactively. Use this knowledge to your advantage to present your strategy that ensures that customers will buy from your over your competitors – the research and insight you demonstrate by offering this information is sure to impress investors. If they have confidence in you, they’ll have confidence in investing in your business.

Further reading

Read more about writing a business plan on the Start Up Donut.

Copyright © 2014 Mark Edwards, General Manager at www.rocketlawyer.co.uk.

@RocketLawyerUK 

Posted in Starting up | Tagged business plan | 0 comments

Ten things you could have learned from our blog in 2014

December 08, 2014 by Mark Williams

10 things you could have learned from our blog in 2014{{}}1 “If you run a business, it is advisable to seek professional help in writing a will. For example, if you are a majority shareholder but die unexpectedly without having a will, your shares, and therefore, majority ownership of the business, would be subject to the intestacy rules.”

From Why business owners need to have a will by Rob Martins.

2 “Health and safety is all about risk prevention, and in worst-case scenarios, what to do if an accident occurs. First, start by assessing potential risks in the workplace. Once these have been documented, state what you are doing, or have done, to control those risks.”

From Ten steps to creating a health and safety policy that works by Malcolm Tranter.

3 “The agreement should set out which matters require a higher level of shareholder support before being approved. This helps to protect minority shareholders from being ambushed during the voting process and is usually applied to decisions which have significant impact on the company.”

From Shareholder agreements - the basics by Saracens Solicitors.

4 “Both parents will be required to give their respective employers eight weeks’ notice before beginning shared parental leave. The required notice can be given before the child’s birth, enabling shared parental leave and pay to begin immediately after the compulsory two-week period of maternity leave.”

From How will the new parental leave rules affect your business? by Julian Cox.

5 “In certain circumstances, there is substantial risk, for example, if you offer a settlement agreement without having raised concerns about the employee’s work performance or conduct. You may try to claim that discussions and related documents are ‘off the record’ or ‘without prejudice’, but you are not entitled to treat them as such. If the employee refuses, they may argue the relationship of trust and confidence between you has been irretrievably eroded, and use discussions and any related documents as evidence in a claim for constructive dismissal and/or discrimination.”

From Settlement agreements: a guide for employers by Julian Cox.

6 “You will be expected to provide full details of your business interests in the event of a divorce, which should be backed up by paperwork. Clear and organised historical records can provide a paper trail that shows the court exactly how the business has been run and the involvement both partners have had. It will be better if you present this information, rather than your spouse, where details can be misinterpreted.”

From Protecting your business from the possible consequences of divorce by Vicki McLynn.

7 “By following medical advice from the GP, you can strengthen your position with regard to potential unfair dismissal and disability discrimination claims. While you shouldn't rely solely on medical advice, it can help to demonstrate that you have investigated the situation and taken into account all the circumstances before making any decision to dismiss. Proceeding to termination without medical advice can leave you open to a costly employment tribunal claim.”

From How to deal with long-term employee sickness by Davis Blank Furniss.

8 “Employment Tribunal submissions increased sharply between 2009/10 (628,000 cases) and 2012/13 (928,000 cases), with a marked rise in the number of women bringing Tribunal Claims as a result of alleged sex discrimination or unequal pay.”

From New minimum payment & tribunal stats UK

9 “Acas figures also show that cases heard under Pre Claim Conciliation – the forerunner of the new Early Conciliation scheme – cost just £475 and one working day compared to £3,700 and four days for an employment tribunal. This should all amount to less stress, cost and disruption for everyone.”

From Acas Early Conciliation service by Fiona Prior.

10 “Contrary to popular perception, pre-nuptial (and post-nuptial) agreements are not legally binding in England and Wales. Although the Supreme Court decision (in the landmark case of Radmacher v Granatino) strengthened the force of pre-nups and ruled that they should be upheld by the courts as long as they are fair, judges can still order different financial provision in the event of a divorce.”

From Could pre-nuptial agreements become mandatory? by Muna Saleem.

Many thanks to the experts who shared their knowledge in 2014 to ensure this blog remains so popular. A massive ‘Thank You’ to all our readers, too, of course, we hope you found that reading this blog was helpful, thought-provoking and enjoyable. Happy Christmas – here's to a fantastic 2015…

Further Reading

Ten things you could have learned from the Start Up Donut blog in 2014

IT Donut: best of 2014

Ten things we learned from the Marketing Donut in 2014

Ten things you could have learned from the Tax Donut in 2014

 

Unfair dismissal tribunals - infographic

November 24, 2014 by Guest contributor

Unfair Dismissal and RedundancyInformation about Unfair Dismissal and Redundancy from Knocker & Foskett employment solicitors, based in Kent, visit their website for more information

Further reading

Dismissing employees - key facts

When a dismissal is automatically unfair

Should holiday pay include overtime?

November 05, 2014 by Mark Williams

Should holiday pay include overtime?{{}}Business groups have reacted angrily to an Employment Appeal Tribunal (EAT) judgment that could mean the holiday pay of millions of UK workers will need to include overtime. Currently, holiday pay is based on basic pay.

To make matters worse for employers, this could be backdated, with some business groups warning that the resulting additional cost burden could force many small firms out of business.

According to the government, about a sixth of the UK’s 30m employees could be entitled to the “backdated holiday pay bonanza” (as The Daily Mirror described it). Critics were quick to point out that the ruling did not make it clear whether “overtime” referred to compulsory and voluntary overtime.  

The EAT judgment was made on 4 November and relates to appeals in Bear Scotland v Fulton and Baxter, Hertel (UK) Ltd v Wood and others and Amec Group Ltd v Law and others cases. The employees won their original claims and the tribunal rejected the companies’ appeals.

Desperately unjust

John Allan, national chairman of The Federation of Small Businesses (FSB), said: “Clearly it would be desperately unjust to expect businesses to pay retrospective compensation for how they calculated holiday pay when they were fully compliant with the law as it was understood at the time. The FSB has been appointed to a government taskforce to examine this issue and will be fighting hard for small businesses to be insulated from the uncertainty and legal risks this ruling brings.”

Allie Renison of the Institute of Directors said: “Businesses have had the rug pulled from under them. Overtime has never been included in holiday pay before and many companies are rightly worried about the administrative nightmare this judgement creates. The extra complexity will be hard for small firms in particular to handle, especially in industries where the workload shifts up and down over the year. 

“There is some consolation that backdated claims may be limited to three months, but it’s not clear how watertight this is. Overall, it will increase costs for businesses, and the money has to come from somewhere. Firms may have to postpone investment or hiring, or give existing staff fewer hours. Managers will have to spend a lot of wasted time making sure they comply with the extra red tape, when they should be allowed to focus on developing new products and services and growing their businesses.”

CBI director general John Cridland, described the ruling as a “real blow to UK businesses now facing the prospect of punitive costs potentially running into billions of pounds – and not all will survive, which could mean significant job losses,” he warned. “This judgment must be challenged. We need the UK government to step up its defence of the current UK law, and use its powers to limit any retrospective liability that firms may face.”

Securing justice?

Predictably, employee representatives welcomed the ruling. Howard Beckett of Unite said: “Until now, some workers who are required to do overtime have been penalised for taking time off [to which] they are entitled. This ruling not only secures justice for our members who were short changed, but means employers have got to get their house in order.”

TUC general secretary Frances O’Grady commented: “Failing to count overtime when calculating holiday pay is quite simply wrong. This ruling marks a victory for people who work long and hard to make a living, and who deserve to be properly paid when they take their well-earned leave.”

Business Secretary Vince Cable has set up a task force to assess the impact of the ruling. He said: “The government will review the judgment in detail as a matter of urgency. To properly understand the financial exposure employers face, we have set up a task force of representatives from government and business to discuss how we can limit the impact on business.”

So, employers can breathe easily – at least for the time being. The EAT judgment could also be referred to the Court of Appeal, which means a final decision on implementation could be some years away.

Blog written by Start Up Donut editor and freelance SME content writer Mark Williams.

Further reading

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