With the Six Nations championship due to start tomorrow, Law Donut has been asked to explain the laws of rugby in the same clear way that we explain legal minefields such as shareholder disputes and divorce settlements. We are happy to oblige. Rory MccGwire, founder of Atom Content Marketing and the Donut sites, is a rugby coach and a (very) amateur ref:
Whenever I watch rugby on TV, and whenever I referee a match, there are screams of "Referee!?!" from all sides. So here are 12 laws to explain why, sometimes, referees blow their whistles, and why other times they let play carry on. Let's start with the more simple rules:
With thanks to Andy Nelson, Chris Groves and Tony Rigg (all from St Brendans RFC in Bristol), and Chris Smith and Emma Jones, all of whom can share the blame for anything contentious. And for those of you who want to remind me that women also watch, and play, rugby (and, in the case of the England team, with much more success than the men), the male pronoun is just for ease of writing. Honest.
The annual workplace Christmas party is traditionally a way for colleagues to celebrate their successes over the past year and let their hair down in the build up to the holidays.
Although some businesses put on a lavish event, often it's just a meal with a few drinks. The majority of these work "dos" are appreciated by employees and go without a hitch, but occasionally problems do arise and employers can be held vicariously liable, because the party will generally be considered to be an extension of the workplace. Avoid a litigious start to the new year by guarding against some of the main issues.
Some of the most clichéd Christmas party shenanigans, such as asking a colleague for a kiss under the mistletoe or distributing photocopies of one's posterior, can potentially lead to sex discrimination or sexual harassment claims under the Equality Act 2010.
Sexual jokes, remarks, so-called "banter" or simply mild flirtation may cause offence or discomfort and employers should ensure that party attendees are aware of the boundaries. Suggestive "selfies" or risqué photos taken at a party and circulated on social media by colleagues can also lead to headaches that continue beyond the hangover. Even a sexually suggestive "Secret Santa" gift can lead to legal problems.
Case in point: Livesey v. Parker Merchanting Ltd .
Although mass consumerism has diluted its origins for many, Christmas is still a Christian religious festival and some of the traditions may potentially cause offence to people who follow other religions, atheists and agnostics.
Under the Equality Act 2010, employers must ensure that staff who hold different religious or philosophical beliefs do not suffer discrimination at a work Christmas party. This might mean providing non-alcoholic drinks (eg for teetotalers or Muslims), halal or kosher meat, vegetarian or vegan meal options. If the event is being framed specifically as a Christmas party, attendance should not be mandatory (ie to avoid causing offence to anyone who does not celebrate Christmas).
Case in point: Elgedawy v Hanover Park Commercial Ltd.
These are the other protected characteristics, on grounds of which it's unlawful to discriminate under the Equality Act 2010, and employers should take reasonable steps to ensure that staff are not affected by "banter" or inappropriate humour relating to any of these characteristics. Furthermore, if any employees with disabilities are attending, disabled access should be provided at the venue. And if partners are invited, "plus one" invitations should not make assumptions about gender.
Case in point: Nixon v Ross Coates Solicitors & Anor .
Whether the work Christmas party is held on or off-site, the employer will generally still be responsible for the health and safety of their attending employees under the Health and Safety at Work etc Act 1974. As alcohol is often involved, the likelihood of slips and trips can increase, and there is even the possibility of high spirits taking a change of direction and ending up in a fight. Employers should also consider how their staff members will get home safely. Another health and safety concern relates to food, and employees with certain food allergies should be catered for.
Case in point - Westlake v ZSL London Zoo.
Mobile phone cameras and social media can bring further festive gloom for employers, who need to ensure they abide by the Data Protection Act 1998. In particular, care must be taken if photos of attendees are posted on social media sites or distributed to colleagues, especially if there are inappropriate or compromising. Also, comments posted to social media feeds by employees whose virtual tongues have been loosened by alcohol may cause post-celebratory issues.
Case in point: Game Retail Ltd v Laws .
In an era of social media where we increasingly share every detail of our lives online, the amount of misinformation that appears on a candidate's CV is extraordinary. From bumping up a poor degree to exaggerating about essential qualifications, it appears that some individuals often play fast and loose with the facts.
For start-ups that are recruiting staff, there's a real danger of employing a fraudulent candidate; and the risks include having to pay for the cost of recruiting another candidate or even legal action.
The solution is to create a culture within your business that values in-depth candidate checking.
In 2014, 63% of all the confirmed employment frauds reported to Cifas, the UK's fraud prevention service, was due to individuals lying about their education, former employment or qualifications.
While most employers and recruitment professionals are aware of the need to verify a candidate’s CV, checking often goes beyond simple verification of academic performance. Many job roles require checks of criminal records, credit history and CRB status.
With staff shortages, many companies are looking to recruit quickly and good candidates can often pick and choose between roles; many start-ups are under pressure to skimp on these vital checks in order to get new staff on board quickly.
The issue is compounded by the fact that once an individual has any kind of employment track record, the temptation is to assume that the previous employer has undertaken the necessary checks.
We often hear of high-profile individuals that have managed to build decade-long careers despite a basic lack of credentials - such former Yahoo boss Scott Thompson who had to step down in 2012 when it emerged that he had falsely claimed to have a computer science degree.
As start-ups struggle to address this, there have been growing calls for the reintroduction of regulation that was abolished 20 years ago. While most employers and recruitment specialists adhere to both the Employment Agencies Act and the Conduct of Employment Agencies and Employment Businesses Regulations, a lack of licensing enables bad practice to persist.
The checking process also needs to be embedded within end-to-end recruitment activity. So rather than a simple "yes" or "no" check-box which provides too much temptation to take shortcuts, companies need a simple way of uploading checks and associated documentation to their database or CRM system.
This way, anyone running the recruitment process in a company can look at a candidate’s information, academic credentials and credit check; even CRB documents will be immediately visible.
Robust checking can add a couple of days to your recruitment process. However, it is only by creating the right culture within your start-up – one that values accuracy and depth of candidate review over speed at any cost - that employers can confidently meet evolving employment targets.
By combining this culture with a recruitment process that enforces compliance and enables essential verification documentation to be easily retained and shared, we can all take steps to eradicate CV fraud.
Copyright © 2015 Toby Conibear, European business director at Bond International Software.
As of 1 October 2015, the annual round of National Minimum Wage (NMW) increases came into effect, with the rate for anyone aged 21 and over going up to £6.70 from £6.50. The most significant increase was to the apprentice rate, which was hiked up from £2.73 to £3.30.
But many workers on the minimum wage will not have to wait another year to see further increases. Employees aged 25 years or over will benefit from the new “National Living Wage” (NLW) which is set to be introduced from April 2016 and will override the NMW rates for anyone in this age bracket. Employers will need to pay a minimum of £7.20 per hour to any of their staff who are 25 and over from April. The Low Pay Commission will recommend future rises to the NLW, with the expectation that it will reach £9 per hour by 2020.
NLW is not replacing NMW and the latter will continue to apply to any employees under the age of 25. However, many retailers have pre-emptively raised the pay packets of their lowest earners to the NLW or higher, irrespective of age. Costa are reportedly paying £7.40 to their trained baristas (£8.20 in London) and Aldi has vowed to introduce a new £8.40 minimum rate for its employees from February 2016.
It should be noted that the NLW, which employers will be required to pay by law from April 2016, is distinct from the living wage set by the Living Wage Foundation. The rate set by the foundation - described as “an independent calculation that reflects the real cost of living” - currently stands at £8.25 (and £9.40 in London).
The most important piece of advice I would give to any business owner who is considering their affairs, eventual death and inheritance tax planning, is to make sure that they have a will.
Sometimes lots can be talked about with partners, co-directors and particularly professionals such as accountants and independent financial advisers, only for the most simple and obvious aspect to be missed.
Making a will can also highlight many issues that should be considered. In practical terms, any business owner should consider how their interest in the business would be dealt with in the event of their death.
Often it is unlikely that the spouse or children would want the shares in the business, they would generally be more interested in getting a fair price for the business. This brings up further complications, such as whether a surviving business partner would pay a fair price or indeed whether they could afford to pay a fair price.
What is certain is that it is best to address these issues before anything happens. If you don't, it is highly likely that there will be acrimonious disputes and the main beneficiaries will be the lawyers who are paid to fight over things.
So what can be done? Our advice would be to look at setting up what is called a cross option agreement. These are generally simple and inexpensive to set up. They give the surviving business partner the option to purchase the shares from the estate of the deceased.
The business partners could give thought in the agreement as to either the price payable for the business or how the price should be calculated, thereby avoiding any long-running dispute on this point. Shareholder and partnership agreements should be drawn up to make sure that what you want to happen on death does happen.
The second part to this would be how the surviving business partner could afford to purchase the shares. What you would generally expect is for the business partners, at the same time as setting up the cross option agreement, to put life policies in place that pay out on death to the surviving business partner.
The surviving business partner would then use the proceeds of the policy to buy the shares in accordance with the terms of the cross option agreement. What would be vital is that the life policy be written into trust, so that the policy proceeds are not liable to inheritance tax. However, it is very important that the trust document is correctly drafted, appointing trustees and naming the correct beneficiaries. Professional advice should be sought.
Most business interests in trading companies qualify for business property relief. This means that they are either not liable to inheritance tax or are only liable at a rate of 50%. You should also bear in mind that spouses are exempt from inheritance tax. Therefore, when writing your will you should consider whether it would be an option to leave the shares in the business to people other than the spouse, such as your children.
If you leave the exempt shares to your spouse, you are essentially leaving an exempt asset to an exempt beneficiary and wasting the tax exemption. However, you may be uncomfortable in leaving the shares direct to your children for fear of leaving your spouse without enough to live on.
One alternative, therefore, is to leave the shares, by will, into a 'discretionary trust'. The beneficiaries of that trust would generally include the surviving spouse and the children. Decisions can then be made very easily after the business owner's death as to who actually inherits the shares, taking account of the circumstances existing at that time and where possible ensuring that the entire estate, including the business interest, is dealt with as tax efficiently as possible. The key is flexibility. Such discretionary trusts can easily be included into a standard will and should not cost more than £450 to £500 plus vat.
Finally, Business Property Relief can be very valuable. However, you only qualify for it if you have owned the shares for two years immediately before your death. If you or an elderly relative owns such shares and they're likely to die in the near future then it is vital that the shares are not given away or sold prior to death, because then the valuable relief will be lost and the proceeds of sale would be taxable, potentially at 40%.