Legal Q&A

Rule 10(2) of the Non- Contentious Probate Rules 1987, SI 1987/2024 ( SI 1987/2024, r 10(2)) states that a district judge or a registrar may authorise a facsimile copy of the will, and any codicil, to be duly marked in place of the original......

Individuals who have the right to obtain a grant in an estate may opt not to extract it. It is generally uncommon for those entitled to secure letters of administration for an insolvent estate to proceed, save where commencing, or defending, proceedings on behalf of or against the estate could deliver a material benefit to it. Where such a benefit exists, the persons listed in the Non-contentious Probate Rules 1987 ( SI 1987/2024), rule 22, may apply. If there is an eligible person within that list who is able to take a grant, they are entitled to renounce that entitlement, and that may well be the safest course in circumstances where there is an insolvent estate in such cases......

Where an employer provides less notice of termination than is required under the employment contract (or none at all), they will have ended the employee’s employment in breach of the contract of employment; in other words, this will constitute a wrongful dismissal......

The Equality Act 2010 ( Eq A 2010) The Equality Act 2010 ( Eq A 2010) sets out measures to secure equality between men and women in pay and other employment terms where an employee’s work matches that of a comparator of the opposite sex. It accomplishes this by implying a sex equality clause into the employee’s contract of employment, ensuring that the contract reflects the comparator’s terms. This mechanism is intended to guarantee parity of conditions between the employee and their comparator......

The approach an employer should take to confirm whether the sums it pays a worker comply with the national minimum wage requirements is explained, in particular, within the relevant section of the Practice Note: National minimum wage entitled National minimum wage — Checking pay against the minimum......

Service occupancy In England, an employee who lives in property owned by their employer to carry out their duties, and who has exclusive possession, occupies either as a tenant or as a licensee under a service occupancy (also known as tied accommodation). The distinction is significant because, under a service occupancy, the right to terminate arises when the employment ends, whereas a tenancy may benefit from security of tenure. A service occupancy is a form of licence that arises where: it is an express term of the employee’s contract of employment that they reside in particular accommodation from which they can better perform their duties ( Glasgow Corporation v Johnstone); or if there is no such express term, one can be implied on the basis that it is essential, rather than merely conducive, that the employee lives in specified accommodation for the better...

First West Yorkshire Ltd t/a First Leeds v Haigh The EAT found that fairness means a reasonable employer must give genuine consideration to any ill‑health retirement scheme before dismissing for long‑term sickness, consistent with overall fairness. In particular, where an employer offers an enhanced pension on retirement due to ill health, it will be expected to take reasonable steps to determine whether the employee is eligible for the benefit of ill‑health retirement under the relevant scheme in question......

The Employment Rights Act 1996 ( ERA 1996) permits an employer to make a deduction from a worker’s ‘wages’ (as defined in ERA 1996, s 27) if: a statutory provision requires or authorises the deduction to be made, for example the obligation to deduct income tax or National Insurance contributions through Pay As You Earn ( PAYE); a relevant term of the worker’s contract permits such a deduction, for instance where the employer has advanced a loan and holds a contractual right to recover money from the worker’s wages in repayment; the worker has already confirmed in writing their agreement or consent to the deduction being taken For further information, see, generally, Practice Note: Deductions from wages, and in particular the principal section covering the topic ' When deductions are lawful'......

An employer operating the pension scheme must use the identical procedure to set up active membership for automatic re-enrolment as it would for automatic enrolment. The employer is required to implement the statutory steps for automatic enrolment so that eligible jobholders are admitted as active members with effect from their automatic re-enrolment date. Where the actions needed to secure active membership occur after the automatic re-enrolment date, that active membership has to be retrospectively applied to that date, and contributions become due and must be paid from that date......

The nature of pay and wages The heart of employment is payment in exchange for work: an employer has a duty to pay wages whenever the employee is ready, willing and able to perform, and this generally applies even if there is no work available at the time. As Lord Templeman explained in Miles v Wakefield MDC, work and wages are mutually dependent: the employer pays for work, and the worker provides labour for pay. If the employer refuses to pay, the worker need not work; if the worker refuses to work, the employer need not pay. To succeed in a claim for wages, the worker must assert, and be prepared to prove, that he worked or was willing to work The contractual framework must also be taken into account. Different treatment may arise where work is not done because of sickness, injury or another...

The answer turns on: what the contract of employment says about bank or public holidays whether any right is contractual rather than statutory, and whether the contract bars payment in lieu of contractual leave on termination Whether there is a right to bank or public holidays Under the Working Time Regulations 1998 ( SI 1998/1833), workers get 5.6 weeks’ paid leave a year: four weeks plus 1.6 weeks. There is no statutory right to paid time off on public or bank holidays; this depends on the contract’s express or implied terms ( Campbell & Smith v Greenwood). If an employer specifies “ X days plus bank and public holidays”, that creates a contractual right, including any extra bank holidays announced that year. Effect of sickness absence If bank holidays fall within the 5.6‑week statutory pot, any that coincide with sickness accrue and can be taken later. If bank...

For the purposes of the Employment Rights Act 1996 ( ERA 1996), an individual’s employment with a specific employer is assumed to have been continuous unless the opposite is demonstrated......

Auto-enrolment—who needs to be enrolled?— Exceptions to the auto-enrolment duty Please consult the Practice Note: Auto-enrolment—who needs to be enrolled?, with particular focus on the section headed ‘ Auto-enrolment—who needs to be enrolled?— Exceptions to the auto-enrolment duty’......

From 28 September 2020, where a self-isolating worker is scheduled to work or carry out any other employment-related tasks during the isolation window (aside from working at home or the location where they are isolating), they must inform their employer that they are obliged to self-isolate, providing the start and end dates of that period. This notice must be supplied as soon as reasonably practicable and, in any case, before the worker is next due to commence work within the isolation period......

Where an employee may hold potential claims against their employer under the Employment Rights Act 1996 (or under other employment legislation), or might otherwise have a claim for breach of contract, the parties can, in most circumstances, enter into a settlement agreement (previously called a compromise agreement) to bring the employment to an end on the terms specified in that document. Among other matters, the settlement agreement will set out and govern all sums and benefits due, or to be provided, to the employee by the employer......

Any pregnant employee who has scheduled an antenatal care appointment, acting on advice from a registered medical practitioner, a registered midwife, or a registered nurse, is entitled to be permitted time away during her usual working hours so that she can attend that appointment, provided that, after the second appointment, she presents the relevant evidence, and to be paid for the period of absence at the appropriate hourly rate for time worked......

For an unfair dismissal claim to succeed, the claimant must ultimately prove he was actually dismissed by the employer concerned...

When the fixed term of an assured tenancy (including an assured shorthold tenancy) ends and the tenant remains in occupation, a statutory periodic tenancy arises under section 5(2) of the Housing Act 1988. To end that statutory periodic tenancy, the landlord may proceed using either the section 8 or section 21 route. The section 21 option is usually preferable, as no grounds need to be proven, unless the landlord cannot meet the pre-conditions for serving a section 21 notice. In those circumstances, a section 8 notice can be used, provided the landlord can rely on one of the specified grounds. For fuller guidance, see Practice Note: Assured and assured shorthold tenancies—terminating, particularly the sections ‘ Method of landlord termination’, ‘ Section 8’ and ‘ Section 21—pre-conditions to service’......

For this Q& A, our review is confined to how lotteries, competitions and prize draws differ. Our analysis has focused specifically on distinguishing among these three mechanisms. Definitions The meaning of 'prize competition' Under the Gambling Act 2005 ( GA 2005), a ‘prize competition’ means any contest or arrangement in which a participant may secure a prize, so long as it does not fall within the statutory concept of gambling. The meaning of 'gambling' English law recognises three principal forms of gambling: betting, gaming and lotteries. While the statutory tests are intricate, they can be outlined in broad terms as follows: Betting involves making or accepting a wager on the result of a race, competition or other event or process, on the likelihood of something occurring or not occurring, or on whether a proposition is true or false (even where one party knows the facts). Although ‘bet’ is not...

The question of whether the clause addressing the ‘consequences of termination’ applies upon both termination and upon the agreement’s natural expiry hinges on how the parties have drafted the contract, and on how the provisions are likely to be construed by the court......