What Happened?
Mrs K was injured whilst walking along a city centre street. There was an area of uneven and raised paving stones with cobbles missing which caused her to trip and fall to the street floor.
It was not clear at first who owned the area where Mrs K fell with no-one accepting responsibility for the area in question.
How Tinsdills Helped
Using our expertise, we obtained land registry documentation and identified the correct land owner, who continued to deny that they were responsible for the area that was in a state of disrepair.
As they would not accept responsibility, we advised Mrs K to issue court proceedings; particularly given she had sustained such a nasty injury.
Mrs K had suffered a head injury, soft tissue injury to her spine and a fracture of the left shoulder which resulted in 3-month off work followed by reduced duties for a further 2 months as well as extensive physiotherapy.
Outcome
During court proceedings, we were able to negotiate a settlement with the solicitors acting on behalf of the Defendant which resulted in our client’s claim settling for £11,500.
Mrs K Comments:
“Right from the beginning, the help and advice I received was very reassuring. Throughout the whole process, I was always kept fully informed of any updates and given the opportunity to comment on and discuss any concerns or queries.”
“I believe the service they provided was extremely professional and I would recommend Tinsdills Solicitors to anyone requiring assistance with their claim.”
If you’ve been involved in trip and fall accident call us on 01782 652300 or enquire online today.
The employer has a duty to
assess risks and to take steps to avoid or minimise risks where possible. These
steps may include:
Prevention
Response
Training
Management & supervision
The risk assessment should be
reviewed periodically and should assess:
Whether there are any tasks too dangerous to be carried out by a lone worker
Any appropriate arrangements to provide help or back-up
Employers have a duty to
consider any foreseeable emergencies and consider factors such as:
Is the workplace a specific risk to a lone worker
Is there a safe way in and out for one person
Is there machinery involved
Are chemicals involved
Is it necessary to lift heavy objects
Training is particularly
important for lone workers given there is limited supervision and to enable the
worker to cope with any unexpected circumstances.
There should be some
supervision and monitoring and again this should be included in any risk assessment.
Perhaps regular contact
between the worker and supervisor is required by phones or other means. Is a
manual or automated warning device necessary? Should the lone worker call into
their supervisor or office once their task has been completed?
An emergency procedure should
be agreed and communicated to your employees. The best way of doing this is by
way of a written policy.
If your business has one or
more lone workers then it may be relevant to have a very simple Lone Worker
policy in place. This can be included as a stand-alone policy or could be
included in your Staff Handbook.
You may want to consider
revising all your employment policies and procedures to make sure you are as up
to date as you can be regarding obligations to your workforce.
Comments Off on What is a Settlement Agreement and When Can They be Used?
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A settlement agreement is a contract between an employer and employee (or former employee) that is used to record terms of agreement between the parties following the termination of employment. The main purpose of settlement agreements is that in signing them, the employee waives their rights to bring a claim against the employer in a Court or tribunal, and they usually involve an agreed payment from the employer to the employee.
To be valid, the agreement must be in writing, must relate to particular potential complaints or proceedings, and must state that the relevant statutory conditions regulating settlement agreements have been met. Most importantly though, the employee must have taken advice from a relevant independent adviser, who must be named in the agreement.
The cost of your independent adviser is usually covered by the employer. There should be a clause within the proposed settlement agreement that stipulates this and states the amount that they are willing to pay.
There is specific criteria that the relevant independent adviser has to meet. This includes the stipulation that they must have a current professional indemnity insurance policy in place, and they have to be identified in the agreement so that they can sign to say that they’ve provided advice.
They can be used in most circumstances relating to the termination of employment, including a redundancy situation, a gross misconduct dismissal, a capability dismissal, or even a mutually agreed termination.
If you’re entering into a settlement agreement, you should remember that you’re doing so voluntarily – which means that the terms of the agreement are negotiable. So, if your employer offers a payment that you don’t consider to be fair, you can either negotiate this, or your independent adviser can do so on your behalf.
In some situations, your former employer may offer you less than your statutory and/or contractual entitlement. Usually, your settlement agreement should include a compensatory payment in addition to your statutory or contractual entitlements. These statutory and contractual payments can be made up of notice pay, statuary redundancy pay, holiday pay, bonuses etc. A compensatory payment is a separate payment altogether.
So, it is worth noting that in signing the settlement agreement you are signing away your rights to bring a claim against your employer – which may not be a good idea if your employer is only offering payments equal to or less than your statutory and contractual entitlements. Again, your independent adviser is the best person to ascertain whether the payments that you’re being offered under the agreement are fair in all the circumstances.
Your independent adviser will also handle tricky bits like distinguishing which payments are taxable and which are tax free, based on whether the payments are compensatory or salary payments. Compensatory payments are made for the loss of your job, and the first £30,000 will be paid tax free. Anything over that amount will be taxed in the usual way, along with all other payments (including notice pay, holiday pay and bonuses).
In general, your independent adviser will help you to consider whether your settlement agreement is fair in all the circumstances. For example, if you’ve got a potential or actual personal injury claim, your adviser will be able to ensure that the wording of the agreement excludes this type of claim from the list of claims you are relinquishing, to ensure you will still be able to pursue it.
Overall, it’s fair to say that settlement agreements are contracts that formally sets out the terms of the termination of your employment relationship. Your independent adviser is a requirement but is also there to ensure that the contract is worded and signed off in the manner that most benefits you.
If you are seeking advice relating to your employment rights or a settlement agreement, feel free to get in touch with us. You can call us on 01782 652300 or drop us an email at lawyers@tinsdills.co.uk.
[vc_row][vc_column][vc_column_text]Having a well-drafted shareholders’ agreement in place not only documents the understanding between shareholders in relation to particular matters, which can provide certainty, but can also provide shareholders with better protection in the unfortunate event of relationships deteriorating.
So what is a shareholders’ agreement?
A shareholders’ agreement is a contract between the shareholders of a company, and more often than not, the company itself, which sets out agreed matters between them such as how shares can be transferred, how dividends are payable, non-compete restrictions and exit plans, amongst other things. It gives the shareholders personal rights and imposes personal obligations on the shareholders.
The agreement can provide protection to minority shareholders and majority shareholders, regulate the transfer of shares, impose restrictions, govern decision-making, and much more.
It is also very easy for individuals to go into business together and to hit the ground running without thinking about what happens to the company if there is a major disagreement. Despite good intentions, there will be times during the life of a company where disagreements occur. A shareholders’ agreement can include a dispute resolution procedure which can be utilised if relationships have broken down, and which will give the parties a structured plan in stressful circumstances.
However, it is important to ensure that the company’s articles of association are consistent with the shareholders’ agreement to avoid uncertainty or conflict and ensure adequate remedies are available in the event of a breach of the provisions. Together, the articles of association and the shareholders’ agreement regulate and govern the running of the company, the relations between the company and its directors & shareholders. Below are a few common questions often asked when discussing the benefits of a shareholders’ agreement.
Below are a few common questions often asked when discussing the benefits of a shareholders’ agreement.
Why should the shareholders have an agreement?
Some of the main benefits of a shareholders’ agreement are:
In the event of a dispute occurring, a well-written shareholders’ agreement can provide a dispute resolution procedure to be followed, with the intention of resolving disputes swiftly in order to protect the company’s business. A shareholders’ agreement may also prevent a dispute escalating as
the provisions may assist in clearing up any misunderstanding between the parties.
Share transfer provisions, such as pre-emption rights (the right of first refusal), compulsory transfer provisions (deemed transfer of shares in certain situations) and permitted transfers (the ability to transfer shares to family members or intra-group).
It can include specific policies in relation to the declaration of dividends, providing for certain levels of dividend to be declared, certain reserves to held or different policies that apply to different classes of shares.
It can offer protection to minority shareholders, such as providing for matters that require the consent of minority shareholders or “tag along” rights in respect of any sale of shares by the majority shareholders allowing the minority to “tag” on to that sale.
It can also offer protection to majority shareholders, such as the ability to oblige the minority shareholders to sell their shares if an offer is received for the entire share capital of the company and they wish to sell.
It can detail agreed provisions relating to the management of the company at the director level, which helps to provide clarity and consistency regarding the day to day running of the company. For example, detailing matters that would require the consent of the shareholders or allowing specific shareholders to appoint directors.
It can impose restrictive covenants on the shareholders, restricting their ability to be involved in any business that competes with the company’s business or provides services to the clients of the company or engages suppliers.
It can provide for what will happen where consent to certain matters require the consent of two or more parties and such consent is not forthcoming. As a result, the inaction may adversely affect the company’s business. Deadlock provisions can be included in an agreement which provides the mechanics of how the deadlock will be resolved, usually by providing that the parties can buy each other’s shares.
It can impose confidentiality restrictions on the parties to the agreement to protect valuable information that is key to the company’s business, both whilst the parties are involved in the company and after.
The process of drawing up a shareholders’ agreement requires the shareholders to address many provisions and scenarios, such as what happens if a shareholder wishes to transfer or sell his shares or passes away, exit strategies, and how shares would be valued in different scenarios. On a practical level, this engages the shareholders to discuss, consider and agree with each other an acceptable position in relation to such matters which, in doing so, focuses minds and minimises the risk of disagreement in relation to such matters in the future if and when they arise.
It can include provisions that relate to commercially or financially sensitive matters which are not appropriate to be included in the articles of association of the company (which is a publicly available document).
The agreement can also demonstrate that the shareholders have planned ahead and have acknowledged that disputes may arise, but have attempted to address how such disputes would be handled to minimise disruption and detriment to the company and its business. Having such foresight can create a good impression if the company is seeking finance or investment from third parties.
What are the risks of not having a shareholders’ agreement?
Some of the main risks of not having a shareholders’ agreement are:
If things don’t work out as planned, difficulties can arise without a clear exit strategy for shareholders.
Shareholders who leave their employment with the company may be able to retain their shares, which is often commercially undesirable.
Minority shareholders are forced to rely on statutory rights which, in practice, may be cumbersome and expensive to enforce.
Minority shareholders may be able to block a sale.
If there is a deadlock situation and no resolutions either at director or shareholder level, draconian measures such as winding up the company may be the shareholders’ only option, which can be extremely time-consuming and expensive.
Shares are, at law, freely transferable unless the articles of association of a company, or any relevant agreement between shareholders, prevents this. So without appropriate share transfer restrictions, the shares are at risk of transfer to unknown parties.
Reliance on common law confidentiality obligations which may be more difficult to enforce.
Departing shareholder’s ability to set up a competing business, poach employees or suppliers.
The directors may be able to take decisions of the company which the shareholders would want to be involved in, such as excess capital expenditure, acquisitions or sales of other businesses or assets, making or receiving loans or other financial commitments.
What are the benefits of seeking legal advice on a shareholders’ agreement?
It is always advisable to seek legal advice on the terms of any legal agreement.
It is often the case that the risks lie with what is not in the agreement rather than what is.
The terms of a shareholders’ agreement and the articles of association of a company are very much tailored to a company’s share and management structure, and the company’s future plans. The agreements are not “one size fits all” and receiving advice appropriate to your company circumstance is imperative to avoid creating more problems than the agreements solve.
We can negotiate and draft all terms of a shareholders’ agreement and articles of association on your behalf. We have vast knowledge and experience in drafting both simple and complex agreements and articles to suit your needs. Getting the right legal advice at the right time can help to keep your business running smoothly in order to achieve long-term success.
If you have any other questions regarding this subject or Commercial Law generally, feel free to contact us today. Give us a call on 01782 652300 or email us at lawyers@tinsdills.co.uk.[/vc_column_text][/vc_column][/vc_row]
[vc_row][vc_column][vc_column_text]With a strong rooted relationship and presence in the Leek area, Tinsdills Solicitors has been around since 1580. But how well do you actually know our Leek office?
Typically we are well known for Wills, Trusts & Probate and Residential Property. Individuals associated with these types of work are Peter Hamilton, Managing Director and Head of the Wills, Trusts & ProbateDepartment, with Emma Marrow working alongside him as a highly experienced and well established Paralegal. Together they can provide all related services, from making a straightforward Will through to complex Estate matters.
Likewise, in looking after your Residential Property requirements we actually have two dedicated Conveyancing teams based at our Leek office. One of these is headed up by Andrew Burrows, Residential Solicitor and Director, and the other by Sam Sharratt, Residential Legal Executive; both of which offer an extensive range of conveyancing services.
Our Leek Office boasts an impressively strong and experienced team handling Commercial Property & Agricultural related legal services. Sara Pickerin, who has worked for Tinsdills since 2002, returned from maternity leave last summer to join forces with Kelly Myatt who has worked for Tinsdills since 2006. Their combined expertise and experience should leave you safe in the knowledge that you are in safe hands. They can offer expert assistance in all aspects of Agricultural Law and Commercial Property, from sales and purchases through to complex development work. For more information call them on 01538 399199.
We also have Karen Wilson, our Family Solicitor, available to see clients at the Leek office, covering all aspects from divorce and child matters to civil partnerships and name changes – to name just a few.
At the end of last year our Leek office underwent a moderate refurbishment, helping to modernise the historic building without losing its charm. We are delighted to continue to grow our expert teams and reaffirm our commitment to providing services to Leek and the surrounding area.
To find out more or to book an appointment at our Leek office call us on 01538 399199.[/vc_column_text][/vc_column][/vc_row]
[vc_row][vc_column][vc_column_text]Buying a new car. We’ve all been there.
You have spent days, even weeks searching for the perfect car; that sports model you’ve always dreamed of or that 4×4 for family outings. For most of us the process is smooth and easy, you pick up your keys to your new dream car and leave the forecourt ready to take on the world.
But what happens to those who buy their dream car and it is not quite as it seemed?
Clients often come to us asking what rights they have when the car they purchased does not work as they expected, or it doesn’t quite work as it was described by the seller. This is often followed by ‘Can I force the seller to take their car back and get a refund?’
Unfortunately, as with so many other legal questions, the answer is ‘it depends.’
So let’s take a step back and clarify. Firstly we need to look at what the law says.
The relevant legislation is the Misrepresentation Act 1967, which states that:
Where someone enters into a contract and relies on a statement of fact made by the other party, and that statement turns out to be false (a misrepresentation), the remedies the court can give will depend on whether the misrepresentation was innocent, negligent or fraudulent.
In all cases the innocent party may seek rescission* (having the contract set aside and the parties restored to their original position prior to entering into the contract). Furthermore in cases of negligent or fraudulent misrepresentations the innocent party may seek damages instead of or in addition to rescission.
NB *it is down to the courts discretion to rescind the contract and will depend on a number of circumstances. The court will not rescind the contract if:-
The contract has been affirmed by the innocent party (in other words, they have acted in such a way to show an intention to retain the vehicle and the contract as remaining in place)
Third party rights have intervened
There has been an excessive delay in bringing a claim
The subject of the contract cannot be restored, making it impossible to restore the parties to their original positions.
This is the reason why if you ask a lawyer whether you are entitled to a refund after something turns out not to be as described, the answer is always likely to depend on individual circumstances.
To put all of this into context:
A relatively recent case decided by the Court of Appeal in 2015 called Salt v Stratstone Specialist Limited T/A Stratstone Cadillac Newcastle has gone some way towards clarifying the law in this area.
Mr Salt purchased a car in September 2007 following the Cadillac dealer’s representation that the car was “brand new.” In fact, although the car had never been registered, it was two years old, had various repairs prior to purchase and had also been damaged in a collision.
The car had numerous defects which came to light after the purchase. Some of these were repaired, but in September 2008 Mr Salt tried to reject the vehicle and asked for his money back. The defendant refused, so in March 2009 Mr Salt issued court proceedings.
Mr Salt pleaded misrepresentation and sought rescission of the contract.
Initially it was decided that the contract could not be rescinded as the car was a depreciating asset and the delay in initiating court proceedings disadvantaged the dealer.
The Court of Appeal disagreed, finding that neither depreciation nor intermittent enjoyment should be regarded as a reason for finding that the contract could not be set aside.
On the facts in this case, the court found that the absence of evidence about depreciation or the value of the use of the car should not operate to the disadvantage of the claimant, who should never have been put in the situation of having a troublesome old car rather than a brand new one.
What can we take from all of this?
In general terms, it strengthens the position of the buyer in insisting that the seller should unwind the contract and repay the purchase price.
So, if you should ever find yourself in the same position as the unfortunate Mr Salt, do not delay in seeking assistance in pursuing a claim. If the court is satisfied that the seller made statements of fact that turned out to be untrue, and you relied upon those statements in deciding to make the purchase, you may well be entitled to a refund.
The longer you leave before notifying the claim and, if necessary, commencing court proceedings, the more likely it is that the court will exercise its discretion not to rescind the contract but instead to make an award of damages.
If you would like advice on a dispute of this type, or any other commercial dispute, please contact our team on 01782 983944[/vc_column_text][/vc_column][/vc_row]
[vc_row][vc_column][vc_wp_text]The subject of zero-hours contracts has been in the news fairly recently, brought about due to a legal challenge against Sports Direct over its use of these contracts.
The legal challenge is apparently raising the question that the use of zero-hours contracts discriminates against part time workers. This follows reports that 90% of SportsDirect’s employees are engaged under these contracts.
Business Secretary, Vince Cable, has suggested that zero-hours contracts may be subject to legislation but ruled out a complete ban. He will decide whether to hold a formal consultation on specific issues in September.
So what does a zero-hours contract mean?
A zero-hours contract does not oblige the employer to provide work for the employee nor does it oblige the employee to accept work offered. Although the employee agrees to be available for work as and when required. It can be uncertain whether a person working under a zero-hours contract is an employee or a worker. The distinction is that an employee generally has more legal rights than a worker. When deciding whether a zero-hours contract means the individual has the status of an employee it will not just be the wording of the contract that is relevant, but what happens in reality will be considered. If the reality is the individual is offered and accepts work on a regular basis then any tribunal is likely to deem the contract to be an employment contract.
In many cases zero-hours contracts can be beneficial to both employer and employee, particularly where the employer’s business is uncertain due for example to weather conditions or fluctuating business demands. It also benefits the individual who may wish to earn occasionally but does not wish to work set hours each week and has the ability to be flexible. Many students like to work in this way but an older workforce may also wish to earn on a more flexible basis.
Many well known businesses such as The National Trust, Boots, Burger King, McDonalds, J D Wetherspoon, Subway, Cineworld and even Buckingham Palace use these contracts.
It isn’t the nature of zero-hours contracts themselves that cause Vince Cable concern, it is more that some employers “exploit” the use of these contracts. However, it is clear that zero-hours contracts are on the increase and this shows that they will not be disappearing altogether any time soon but are likely to be subjected to more stringent regulations in the future.[/vc_wp_text][/vc_column][/vc_row]
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