redundant business woman

Enhanced Redundancy Protections 2020

Will you be removed from your job for redundancy in 2020? It’s an ever-more pressing fear in the looming environment of economic uncertainty, but as an employee you too have rights and options. There are some new legislation coming that may help to address some of these issues.

Defining Redundancy

Before you can appraise if you have a valid reason to claim or contest redundancy, first we must define what redundancy is. According to the Employment Rights Act 1996, an employee has been dismissed for redundancy if the reason is that:

  • the employer ceases to carry on the business in which the employee was employed;
  • the employer ceases to carry on that business in the place where the employee was employed;
  • the needs of the business for employees to carry out work of a particular kind cease or diminish; or
  • the needs of the business for employees to carry out work of a particular kind in the place where the employee was employed cease or diminish.

Note how this means a need for the same amount workers to do a particular job has diminished, not that the need to perform a job has diminished. If a task can be done with fewer employees, or if a company must move or restructure, then that is a valid case for redundancy. If there simply is less incoming work for employees to do, that is not redundancy. If you are doing a job and then they get someone new to fill that job, that is not redundancy! Redundancy happens when the job you are supposed to be doing no longer exists.

It is illegal in the UK to use redundancy as a reason for a dismissal when there no legitimate issues with employee performance.

Redundancy is often used as a convenient excuse for firing employees for reasons less sensitive to voice. It may be a matter of job performance, friction in the workplace, business income failing to support the number of employees, or some form of discrimination. If you get a notice that you may be let go for reasons of redundancy, it may be prudent to look behind that for the real reason.

There are upcoming laws in 2020 that make the excuse of redundancy easier to challenge. It is also sometimes advantageous for an employee to claim redundancy, since there are enhanced redundancy pay arrangements for long-serving employees. Get all that you are entitled to in a dismissal.

 

woring beyond Retirement Age

Working Beyond Retirement Age

The UK does not have a default retirement age anymore, and employers may no longer force employees to retire. Now, a company may have its own retirement cut-off age policy, but all dismissals must come from a justifiable basis instead of simply entitled discrimination, age-related or otherwise.

In a recent judgment of Ewart v The Chancellor, Master and Scholars of the University of Oxford, the Employer Justified Retirement Age policy was meant to provide a proportionate means of creating opportunities of employment for younger and more diverse staff. However, the statistical evidence provided by the claimant proved that the policy only created a small number of vacancies. It was decided by the tribunal that the University did not show sufficiently that the policy contributed to the achievement of its legitimate aims to an extent that it can justify the discriminatory effect.

State pension age in the UK is increasing, and age discrimination is something that concerns many employees who are at approaching an age where finding a new job is quite unlikely if dismissed.

 

Maternity Leave

Pregnancy and Maternity Leave Protection

Many employers don’t like paying out for maternity leave because it is a long period of time of reduced productivity, and there is an urgent need to find someone else to perform the job that the pregnant employee must leave behind. Then once the new normal has settled in, is there a need anymore for the previous employee? This is why women need stronger maternity protections as the mere mention of ‘pregnancy’ sends alarm bells ringing for employers.

According to a government report, one in nine women had been fired or made redundant when returning to work after having a child, or were forced out from unfair treatment. Research estimated that up to 54,000 women a year felt they had to leave their jobs due to maternity discrimination.

Maternity discrimination is of course illegal, and those on maternity leave have special protections in a redundancy situation. Under the Good Work Plan of 2020, there will be expanded redundancy protections – six months after return to work, and up to two years in total for the maternity period.

According to Regulation 10 of the Maternity and Parental Leave Regulations 1999, if your job is at risk of redundancy but you need to be present for interviews – if for health reasons you cannot be present, you do not have to attend interviews. Regulation 10 says that you should be given first refusal over suitable alternative jobs that are not substantially less favorable than your original job, over other employees being made redundant.

Sefton Borough Council v Wainwright EAT 2014 notes that a woman on maternity leave should be considered alongside other employees when assigning employees into other posts.

Men also have protections under Shared Parental Leave in the first year after birth or adoption to be immediately offered suitable alternative employment.

Dismissal Comes before Redundancy Trial Periods

The case of East London NHS Foundation Trust v O’Connor has Mr. O’Connor working as a Psycho-Social Intervention (PSI) worker for an NHS trust. In March 2017 he was informed that the role was being deleted under restructuring on 3rd of July 2017 and he was offered an alternative role of Care Co-ordinator. He began a trial of the role on that date.

O’Connor raised a grievance that the role was not a suitable alternative and the trust agreed to extend the trial period until this was resolved. In Nov 2017 his appeal was rejected and he declined the offer of the Care Coordinator role again. He was dismissed on Dec 2017, and the trust refused to make statutory redundancy payments on the grounds that it believed that the alternative employment had been unreasonably refused.

A tribunal decided that O’Connor had not actually been dismissed until December, and as such the trial period was not in actuality a statutory trial period.

If you are given notice that your role is being deleted, there is no rule of law that the notice of deletion was inevitably amount to a dismissal. Employment solicitors have noted that an employer must also carefully follow procedures in removing employees for redundancy instead of assuming things.

What if the Whole Company Goes Bust?

How will you get redundancy payments when your employer or company turned insolvent and now completely unable to pay your wages? Then you can claim it from the Redundancy Payments Office and the National Insurance Fund.

The Redundancy Payments Service was started to allow employees to receive their Statutory Redundancy Pay in a much more timely manner than having to wait for their employer’s assets to be liquidated.

You may claim your:

  • redundancy pay
  • holiday pay
  • unpaid wages/overtime
  • statutory notice pay

You may apply online at https://www.gov.uk/claim-redundancy.

wedding prenuptuals

Couples in the Generation Z, i.e., those born on and after 1996, are more likely to seek a prenuptial agreement before marrying, a YouGov survey found. Men and women of Generation Z trend towards being more comfortable with consulting with a solicitor before marriage and protecting their assets first. They are more likely to see no stigma in talking about their money and earnings, specially now that more and more women own and manage their own businesses.

There are many views on whether this realistic approach to marriage and protecting their assets robs the marriage of its romance and seems to imply less than the total trust to their partner in the love. Yet the most important question remains – does having a prenuptial agreement increase the chances of divorce or not?

Poll shows most people don’t believe so

Statistics regarding prenuptial vs non-prenuptial divorces are not available and would be weighed unevenly because those who sign pre-nuptial agreements are those who already have something to lose in a divorce, and the results would most likely bias towards rich vs poor.

According to the yougov poll results, 58% of respondents believe that having a prenuptial agreement doesn’t make a difference on the likelihood of divorce. About 44% believe that having a prenuptial agreement advising how to distribute assets is a good idea. However only 30% would, if they were getting married for the first time, would sign a prenuptial agreement.

Surprisingly, in 2014 only 23% of respondents then aged 18-24 would sign, while 31% and 33% of those aged 40-59 and over 60 years expressed their willingness to sign if they were first getting married again.

Prenups might not affect divorce rates as much, but does affect going through with the marriage

According to data supplied by Hall Brown Family Law, one in four couples who inquire about prenuptial agreements don’t go through with the marriage.

“As opposed to offering a constructive way of dividing assets should their marriage not last the course, they are highlighting very real and serious differences before a wedding which can actually affect the chances of a couple staying together in the long run,” said Sam Hall, senior partner of the firm.

The agreements were serving “a valuable, practical purpose quite apart from that for which they were originally intended”, he stated. “Some of those with whom we have dealt have initially expressed great regret at what happened but later acknowledged that their break-ups were less upsetting than might have been the case had they divorced.”

The divorce rate stands at 42%. For couples in the millennial and Z generations, the marriage age is being pushed back and tend to try to accumulate wealth and security first before attempting to have marriage and children. Many of these generation are also children of divorce and are predisposed to protect their assets.

prenuptual agreements

 

Prenups may ruin the romance, but does help couples through their marriage

One of the changes in mentality that Generation Z have compared to older generations is not seeing marriage as something worth preserving at all costs, but something that should not cause suffering for both people who sacrifice pieces of themselves towards a greater union.

A prenup is not just a way for a rich person to preserve their money, but also as a way to make sure that the one spouse that remains out of the workforce is adequately compensated for neglecting their possible career and nurturing their children while their spouse advances theirs. In addition, having one is a sign of trust that they are not just being married for their money.

If divorce is so disastrous that the prospect of having it is terrifying, that can trap spouses into a loveless or abusive marriage. In the event of a divorce, one of the two will find their prospects greatly diminished entering into the job market, which would hinder taking care of their children.

Generation Z gets talk about how going all-in with the marriage shows trust and leaves no room but to fight for it, while having a prenup signals that they are entering a marriage planning on its failure. Marriages in previous generations lasted for decades because they had no easy option for walking away.

Generation Z sees that divorce is common, and it is nasty, and they want no part of that for their own lives and their children.

Preparing a prenuptial agreement to strengthen your marriage

In the coming years, the trend will be to see how often millennials divorce, who have a different view of marriage than their parents. They don’t seek marriages as much for financial, religious, or family reasons and see marriage as a means for emotional fulfilment. They respect marriage more as legal commitment with much room for compromise.

In fact, some statistics show that divorce rate have dropped by as much as 16 percent in other countries. The marriage rate may be falling, but those who do get married have a greater chance of lasting longer than marriages entered ten years ago. How could this be?

Many point to how newer generations see marriage as a sign of status rather than just something ‘you have to do’, the increase in education and financial ability of those who enter into marriage, or that more and more choose not to enter into marriage in the first place.

Family solicitors in the UK have hit upon another increasing trend for marriages that seeks prenuptial agreements. They do so not to protect their money but to protect their emotions and mutual respect. Having a prenup means also having regular review clauses, such as having marriage, lasting a number of years, preparing for unexpected events like one of them being disabled or incapacitated in severe illness. Landmarks are set and potential troubles discussed, and transparency and fairness talked out ahead of time.

Generation Z no longer functions on a strategy of reckless optimism in marriage. When both parties plan for how their marriage fails, they also must take in mind how their marriage can fail and how to plan to address them before they become problems in the first place. Solicitors advise in their agreements that before entering into a divorce they must meet a required amount of marriage counseling.

Prenup agreements are not automatically enforceable

Prenups make divorce significantly less traumatic and faster to complete. Prenup agreements can be challenged, which is another reason not to think this is an easy way to get out of a marriage but rather an incentive to work towards preserving it.

The enforcement of a prenuptial agreement is up to the court’s view of fairness. According to Supreme Court case of Radmacher v Granatino from 2010, the court should “give effect … a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.

Prenuptial Agreements should also be sure that it was not entered in duress, that both parties had adequate disclosure and required legal advice. The court may also modify the agreement with regards to the contribution to non-economic aspects of family life and for the benefit of their children. Solicitors advise that a prenup is not a predictive contract. There is no guarantee that one spouse will remain the main financial contributor in the future.

But if prenuptial agreements in the UK are not legally binding, then why enter one in the first place?

Prenuptial agreements might not expressly have the force of law, but they do have great weight to the court. For many in Generation Z a prenup is not meant to get the court to protect their money but about respecting their individual autonomy.

It may seem like a prenup might not be “a very British thing”, as some may say, but it looks like that’s changing.

same sex marriage - lovely lesbians kissing on a beach

Unexpectedly, same-sex marriage might force Northern Ireland to have a government again

England, Wales and Scotland all legalized same-sex unions in 2014. The Republic of Ireland voted in a referendum to legalize it in 2015. Northern Ireland remains one of the few territories within the EU zone that still bans same-sex marriages. Northern Ireland however possesses its own parliament, and their own independent judiciary and court system, though the highest court of appeal remains the UK Supreme Court. Northern Ireland also has its own unique issues, such as the fact that it doesn’t quite have a government right now.

The British Parliament decided to slide past the collapsed Northern Irish Assembly to force the government of Northern Ireland to legalize both abortion and same-sex marriages. Landslide votes in the House of Commons do not yet automatically change the law in Northern Ireland. However, since the Assembly in Stormont, East Belfast remains defunct since its collapse in 2017, if this assembly doesn’t resume its duties by the deadline of October 21, the amendments will stand and come to force.

MPs from the Democratic Unionist Party (DUP) voted against and argued that the parliament in London was drastically overreaching their grasp and such matters should remain to be resolved by Stormont. And they will. If the DUP and Sinn Fein could come back to terms in the assembly and restore the government.

2 gay men in sea water

Unexpectedly, many different-sex couples want to have the right to have Civil Partnerships over Marriage too

Prior to the legalization of same-sex marriage in the UK, there was Civil Partnership Act 2004 that allowed them to enter into civil partnerships rather than marriages. Over time the rights assigned to civil partnerships have been much the same as marriage. Unexpectedly, it was raised that the Civil Partnerships Act 2004 might be against the EU Convention on Human Rights for being discriminatory.

The Civil Partnerships, Marriage and Deaths (Registration etc.) Act 2019 will formalize options allowed to heterosexual couples who wish to enter into a civil partnership rather than marriage. Why would they prefer this form of civil union? Here are some reasons:

  1. Marriage carries with it the historical and religious ‘baggage’ that the couple may feel uncomfortable with endorsing.
  2. Marriage is a rite that involves inviting family and friends and hosting a celebration afterwards, some may feel this is too expensive or an invasion of their privacy.
  3. Cohabiting couples are surprised to learn that they don’t actually have as many protections equivalent to marriage as they had assumed.
  4. This will allow transition from or into marriage if one of the couple undergoes a sex change operation.
  5. Legitimacy for children born at a time parents were not formally married.
  6. The recognition of overseas relationships.
  7. Etc.

Voiding a civil partnership is similar to divorcing, often served by the same form and assisted by the same divorce solicitors. There are some peculiarities to civil partnerships however, such as adultery by itself not a valid ground for dissolution, and of course that it may be voided by entering into marriage.

Expectedly, No Fault Divorce will make divorce easier and less costly

The current system of divorce is adversarial, which induce unnecessary stress on the family. Regulations state that one party must be at fault, or that living with them is intolerable. Couples must live apart for at least two years before they may separate fully. Also, one party may deny the divorce – but if they live apart for five years only then will consent no longer be required.

The consultation paper Reducing Family Conflict: Reform of the Legal Requirements for Divorce also stated how the current law aggravates family conflict.

  • A. The question of fault forces couples to take up hostile positions

The need to cite evidence means digging up whatever allegations necessary to prove fault, which may aggravate and humiliate the respondent that the marriage itself becomes irreparable. The defense process increases acrimony, instead of a solution to family justice.

Once the petition has been filed – because of the need to prove fault and the provisions that require lengthy separation before a non-acrimonious dissolution is granted – this strictly works against agreement and reconciliation that could have saved the marriage.

  • B. The law doesn’t actually address the reasons why the marriage breaks down

The divorce petition is concerned only with the fact that the marriage has broken down, not why. The reasons given in the petition may not even be true, but simply the easiest and fastest option for both concerned. Adultery, separation, and other acts that may be grounds for divorce could be simply symptomatic of a desire to dissolve the matrimony.

  • C. The law is open to manipulation

The current law was remarked to be ‘procedurally unfair’, with only 2.28% of all petitions are actually contested in court. Due to the need to provide evidence, even if respondents may agree to the divorce, they may feel it is necessary to disagree vehemently with the allegations in particular used to support the petition.

In practice, many family lawyers and judges feel that the defense is costly, unhelpful, and ultimately futile and imposes unnecessary burden on the courts. Furthermore, outcomes usually reflect the relative bargaining capacity of both parties, and can be misused by vindictive spouses to make the divorce unnecessarily difficult. Divorce terms can be financially abusive even after escaping an emotionally abusive marriage.

Divorce petitions can be considered not a legal issue in itself but a means to construct a narrative that would secure a legal divorce. Those involved, even when they both agree, are highly incentivized to manufacture ‘facts’ to support their petition.

  • D. The current law does not support the emotional needs of children

Research has shown that although children are inevitably affected when their parents separate, it is a far greater cause for social and behavioural problems to see the hostility between them. Where children have been encouraged to take sides, their relationship with both parents are instead impacted severely as from the conflict of loyalties and a child’s keen awareness of hypocrisy.

Furthermore, due to the artificial requirements of consensual separation as grounds for divorce, many are forced by financial reasons to live ‘separately’ as two households under one roof. This creates an artificial atmosphere that is confusion and harmful to children.

Proposed changes to reform the divorce process are concerned with three main outcomes.

  • That the decision to divorce is a measured one, that gives spouses all opportunity to change course.
  • That they are not put to legal requirements and hardship that do not serve their or the state’s interests.
  • To avoid ongoing conflict and poor outcomes for children.

Couple in London, UK

Unexpectedly, the UK actually sees the lowest level of divorce rates in 45 years

According to the Office of National Statistics, in 2017, there were 101,699 divorces down from 106,959 of 2016. This is the lowest since 1973. Divorces peaked in 1993 with 165,018; 1985 with 160, 300; and first in 1972 with 119, 025. However what is missing is that 1972 was also the record highest in marriages with 426, 241 marriages that year. There were much less divorce rates prior to the Divorce Reform Act of 1969, effective 1971, for obvious reasons.

All this shows is the ongoing decline in couples choosing to get married, which means overall there are fewer couples to divorce,” spoke Frank Young, head of family policy at the Centre for Social Justice, explaining that the drop in divorce rates was no reason to celebrate. “Marriage is increasingly a middle-class perk with 87 per cent of higher earners getting married compared to only 24 per cent of lower earners.

Since the 1970s, marriage rates have been decreasing while the divorce rates have more or less managed to remain stable. Waxing nostalgic about 33% of divorces happens when there are 426, 249 marriages to merely 119,025 divorces. In recent years over 45% of marriages end in divorce because since the 1990s, marriages dropped hard below the 300,000 per year rate while divorces hovered around the 160,000 per year rate. 2015 was the best of recent years at 42%, with 239, 020 marriages compared to 101,055 divorces.

It is hoped that by making marriage easier, and making it less painful to separate, this might encourage more marriages that promote stability in the family; wherein there are two partners facing the same challenges and giving support to their children.

Women should not need marriage for financial security and social status and, increasingly, they don’t. Often, marriage makes women poorer, because it creates dependents,” Tanya Gold wrote for The Observer.