October 2021 - MLP Law

What is ‘unregistered property’?

Unregistered property is property that has not been registered at the Land Registry.

Registration of property with the Land Registry became a legal requirement between the mid-1950s and 1990 across the country depending on area. The effect is that all property in England and Wales must now be registered with the Land Registry in certain circumstances, as follows;

1. On sale or gift of the property
2. On mortgage
3. On the grant of a lease for a term of more than 7 years

Whilst it is not compulsory to register your property with the Land Registry if you are not doing any of the above, there are benefits to doing so anyway.

Why should I register my property?

The Land Registry guarantees the title to your property once registered and this guarantee is government backed. This means that if any of the information recorded about your property with the Land Registry is inaccurate and causes you a loss you will not be left out of pocket.

The effect of registering your property with the Land Registry is that all of the deeds are stored electronically in one central place, and so if the originals are lost or destroyed you can still prove your ownership. It can be extremely difficult and time consuming for loved ones to sell a property after the owner has passed away if the property is unregistered and the title deeds cannot be found.

Registration can also help to protect against property fraud as you can register for property alerts should the Land Registry receive any applications affecting your property. It is also possible to enter on to the register an anti-fraud restriction which is an additional security measure we particularly recommend if your property is unoccupied for extended periods or is not your main residence. The restriction means that the property can only be transferred or mortgaged if your solicitor confirms they are entirely satisfied it is you who has authorised the transfer or mortgage.

Voluntary registration of a property also makes any future sale a much simpler process as some buyers will ask that the property is registered before they purchase, a process which can delay a sale by many months in some cases. Property owners who voluntarily register their property also benefit from a 25% discount in the Land Registry fee for registration.

How can we help?

If your property is unregistered, please contact Katie Mitchell, Licensed Conveyancer, today on 0161 926 1562 or send an email to katiem@mlplaw.co.uk and we can provide you with a free consultation and quote for the registration of your property at the Land Registry.

Performance Management and Remote Working

An intrinsic part of good management is ensuring that staff are performing to the best of their capabilities.  Easier said than done and particularly complicated in this new age of increased flexible and remote working.  Indeed, prior to the Pandemic many employers resisted applications to work from home on the grounds that employee performance and output may be harder to monitor, with the common refrain, ‘How will we know what they are doing?’.
 
Yet, the Pandemic has forced a huge ‘working from home’ experiment.  In the past, the visibility of an employee was a primary factor used to determine how hard an employee was working.  Now, a fundamental shift in mindset is required.  It’s not about an employee’s presence but about their output and results.  
 
Monitoring performance
The basic starting point of effective performance management is knowledge – employers need to be aware of how individual employees are performing in order for them to take the necessary steps to manage that performance.  This is likely to be achieved generally by discussions between line managers and the individual employees for whom they are responsible.  Managers who have regular meetings with the staff they manage to discuss performance are more likely to pick up on relevant issues.  These meetings should take place regularly and in particular should cover:
 
•how the employee is doing, including positives
 
•areas to develop
 
•areas of concern
 
It is also good practice for there to be a formal system of assessment. That may take the form of appraisals and/or personal development plans.
 
Measuring performance remotely
It’s therefore important to think about diarising performance assessment, and performance appraisals, for remote employees.  It isn’t where you have them that matters but that you have them at all.  They can’t happen in the same organic way as they did in the office but they are still essential, so should be undertaken remotely (or on days in the workplace for hybrid workers). 
 
Some useful pointers in measuring the performance of remote employees:
 
1. Set clear objectives and review them regularly
This is always important, but perhaps even more so in a remote environment. Every employee needs to know what is expected of them and how their contribution will be assessed and reviewed. When the situation changes (including a move to remote working), the objective should too.
 
2. Determine the appropriate level of supervision
Experienced employees should be trusted to do their jobs with a focus on objectives and assessment.  Conversely, more junior employees will require, and will likely benefit from, more wide-reaching supervision.  It will be problematic for an employer who has failed to supervise and support a more junior employee, to take forward an effective performance management process.
 
3. Address performance concerns promptly
When there are concerns about performance, don’t wait for a formal meeting or scheduled appraisal but get a video call in the diary as quickly as possible.  Many small issues, which could normally be dealt with by having a quick, informal chat, can fester and build if the time is not taken to have the same chat remotely  This can help to avoid a situation from escalating into something more serious, requiring a formal response.  
 
4. Acknowledge good performance
In a remote environment, it’s not just poor performance that might be harder to observe but great work too. Find time to celebrate successes, acknowledge contribution and provide recognition. A thank you goes a long way.
 
5. Give regular feedback
In a remote environment, there is less time for those casual corridor conversations or informal catch-ups over a coffee. It’s therefore important to make sure that there is time set aside on a regular basis to talk about performance in general and against specific objectives. This also gives managers a valuable opportunity to check in with their team, keep track of progress, and keep feedback timely.
 
What to do if you have to implement a performance management process?
 
Stage 1 — issue identified and informal meeting with employee
The first stage is for the employee’s manager to identify as specifically as possible what the performance issue is. It may be illustrated by a single incident that demonstrates an underlying problem, or there may be a series of incidents that are relevant. It is important to be clear and specific, so the employee has less room to argue that he or she did not understand the nature of the improvements required.
 
Tip – this is where the job description/nature of the role as set out in the contract of employment is relevant, especially where the employee is remote and is not seeing how others perform their role or how/where they fit into a team or a department.
 
Then agree the steps that the employee is expected to take to achieve the required improvement should be detailed, and the period within which the improvement must be achieved should be set. The employee should be asked if any training or support is needed.
 
Stage 2 — no or insufficient improvement: first formal meeting with employee (right to be accompanied) and first written warning.  The meeting should be a two-way street, largely to ensure that if the employee has any legitimate reasons for the poor performance, they can be addressed immediately.
 
Explain to the employee that now is the chance for him or her to give any explanation there may be for the under-performance, and provide a proper opportunity for him to her to give a full account. Check again if any training or other assistance is required.
 
The employee should then be notified of any realistic review dates, to monitor improvement.
 
Tip – sometimes, an employee can perform key elements of the job well but doing the job remotely can cause them problems (ie issues with IT knowledge – we all remember stories about the slightly older teachers, who were great teachers but initially struggled with zoom, screen sharing etc when teaching kids during lockdown).  Ensure that there are no blockers caused by remote working – it may be that some employees are not suited to remote working and this should be kept under review (and clarified in writing at the outset of any agreements regarding remote working).
 
Stage 3 — no or insufficient improvement: second formal meeting with employee (right to be accompanied) and final written warning.
 
Stage 4 — no or insufficient improvement: disciplinary hearing (right to be accompanied) and decision to dismiss (or other sanction).
 
Stage 5 — appeal hearing (right to be accompanied).  Any sanction comes with the right to appeal.  Other than dismissal, appeal hearings against any sanctions, should be heard quickly to avoid delay and before any review date (set to monitor improvement) arises.
 
As with any process, it can be adapted to a degree to suit the specific circumstances, for instance, there may be some cases where the poor performance is so intrinsic to the role and so sufficiently problematic, that you can move more quickly to the serious sanctions.  We would advise, however, that your monitoring of staff performance is effective enough that you are able to tackle any issues at a relatively early stage.
 
Record keeping is important at every stage, ask the employee to agree the minutes.  Such meetings can be held remotely.
 
Performance and Misconduct
Certain behaviours can actually go beyond simple poor performance and require disciplinary action due to an employee’s misconduct.  For instance – if a remote working employee is actually lying about their whereabouts, not doing the requisite amount of work or pretending to be working when they are, in fact, watching Netflix all day – disciplinary action is likely to be appropriate.  Most managers will have a sense that an employee is behaving in this manner but some tell-tale signs to look out for include:

·         Taking a long time to respond to routine emails
·         Switching off the camera and using the mute button during meetings
·         Missing deadlines
·         Rarely answering spontaneous calls on Teams or other video conferencing sites
·         Low work output
 
Discrimination 
The manager should also explore whether there are particular issues affecting the employee’s performance, for example personal matters/home life issues.  This can be particularly relevant with remote working, as issues like childcare may be causing a distraction.  Employers should also be aware that, as it is still more likely that female employees have responsibility for childcare, certain working requirements may need to be adjusted to prevent any inflexible approach by the employer being considered discriminatory (for instance, early morning team calls before usual working hours, clashing with the school run).
 
Employers should also consider reasonable adjustments for disabled employees, for instance those with a learning disability.  These can be small changes but have beneficial consequences for an affected employee eg. an employee with a learning difficulty, who is remote working, may benefit from clear, concise instructions over a video, rather than being sent a chain of emails and having to work out what is expected of them.  
 
Grievances
Some employees, either legitimately or as a delaying tactic, may raise a grievance during such a process.  Care should be taken by the employer to address such issues, either as part of the performance management process or separately.  Again, such meetings can be held remotely and the minutes shared with the employee thereafter.
 
Policies
Good performance and capability policies are essential and should be adjusted to reflect any specifics covering remote working.  It is particularly important to outline that, if remote working is impacting on performance, the working arrangement can be withdrawn by the employer.
 
If you would like to advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.
 

Consultation on making Flexible Working the Default

In response to proposals set out in the government’s Good Work Plan published in 2019, this consultation considers making the option of flexible working the default position from the outset of employment.  Currently, a flexible working request can only be made by an employee with 26 weeks’ continuous service.
 
The government has described flexible working as particularly valuable for those who need to balance their personal lives with their working lives, including those with caring responsibilities.  It also cites the fact that such flexibility can bring benefits to employers – attracting more applicants and increasing productivity and motivation levels among staff.
 
The existing right to request a flexible working arrangement encompasses a request to change one or all of the following:
 
·         work location
·         working hours
·         working pattern
 
Some have, however, stated that the current proposals do not go far enough, suggesting that such flexibility should become an intrinsic part of the recruitment process.
 
The consultation closes at 11.45pm on 1 December 2021.
 
If you would like to advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

When can an Employer have a Protected Conversation?

As all good employers know, there is little to be gained from dragging out a failing relationship with an employee.

There are a variety of reasons that an employment relationship can come to an end and if those reasons relate to the employee’s conduct or performance or a redundancy, it might be time to consider having a protected conversation with the relevant employee.

A protected conversation is an “off the record” conversation, used to negotiate exit terms prior to terminating the employee’s employment.  In essence, the discussion is described as protected because the content of the conversation cannot later be relied upon or referred to in an unfair dismissal claim at an Employment Tribunal (subject to some limited exceptions).  The rules surrounding a protected conversation would not apply, however, if there are allegations of whistleblowing, breach of contract or discrimination.

The main motive for having a protected conversation is usually to allow the employer and employee to have a frank and open conversation with a view to reaching a mutual agreement regarding the termination of the employee’s employment.  These conversations have the purpose of exploring whether the employee is interested in agreeing terms, in order to end the employment relationship, rather than proceeding with a performance management, redundancy or disciplinary process.  Such conversations are usually instigated by the employer but an employee can also rely upon the same rules and initiate a protected conversation with his or her employer.

The Acas Code suggests that the following is good employment practice when conducting pre-termination negotiations:

• meet to discuss the reasons for the offer (the employee does not have the right to be accompanied but this is often still allowed),
• set out those reasons in writing, in neutral terms,
• allow a ‘reasonable period of time’ to consider the proposed settlement agreement – at least 10 calendar days, and
• suggest that the employee seeks independent legal advice, especially where a settlement agreement is likely to be used.

It is important to note that the protected conversation can be challenged (and therefore the content of the discussion can be used as evidence in a claim of unfair dismissal), where the employer had behaved improperly.  The Acas Code provides some examples of improper behaviour (but it will differ depending on the circumstances of each case):

• all forms of harassment, bullying and intimidation, including through the use of offensive words or aggressive behaviour
• physical assault, or the threat of physical assault, and other criminal behaviour
• all forms of victimisation
• discrimination because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership
• putting undue pressure on a party

Often a financial incentive is offered to the employee as part of the deal to leave, but not always.  If your business is considering offering financial incentives to secure a ‘clean break’ with an employee, it is advisable to do so by having the employee sign a Settlement Agreement.  Specific advice should be sought in such circumstances

Overall, a protected conversation is a useful tool for an employer to use when managing the end of an employment relationship and can help to allow parties to part ways, without the situation escalating into a costly and stressful dispute.

If you would like to advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

Should I Stay or Should I Go?

With COVID, Brexit, labour shortages, transport issues, fuel and energy shortages, carbon-dioxide shortages, the predicted food and petrol shortages and the increased costs of living and running a business, could the ‘Winter of Discontent’ be the time to sell your company?

Take stock

Take an objective and honest look at your business.  What has the last 18 months meant for your business?  Where do things currently stand?  What is the position on finances, employees, trading, logistics and other key aspects of the business?  Reappraise your business and consider the challenges, what has not been working, how you see the future of your company and how you see your industry moving forward. 

Is it time to sell? 

If your business is really struggling and you cannot see a way forward, or if you have decided that it is time to move on, retire, look at other opportunities or sail off into the sunset, start to look at your exit plan. 

Start Preparing for an Exit

1.       Appoint the right people to look after your sale
Have a team of solicitors, accountants and professional advisers that understand your business, your objectives and your commercial needs who can help you and guide you through the sale process.
 
2.       Get your house in order
– Company Health Check – Few business owners are ready for the sale process and advance preparation, away from the strict timetable of the deal itself, can be really useful, particularly as the sellers has to continue running the business during this busy and difficult period
 
– Accounts / Financials – Consistent monthly management accounts may be more vital to a buyer than a company’s annual audit. Your accountants can assist to determine a fair price for your business or your shares and consideration must be given to what value you are looking to achieve
 
– Isolate any investment assets from the business
 
– Lock in and incentivise your employees

– Make use of any tax reliefs
 
Structuring the Sale and Finding a Buyer

1.       Shares or Assets?
The first thing for a seller to consider is whether the sale of the business will take the form of an asset sale (where the buyer purchases some or all of the assets of the company) or a share sale (where the buyer would purchase all or most of a seller’s shares in the Company).

2.       Who is a potential buyer?
The exit options that are available to sell your business or your company will depend upon your circumstances, but may involve one of more of the following.

Third Party Purchaser – you can sell your company/business to another company.
 
Management Buyout – the managers within the business can buy the company, or a stake in the company.  This is a popular option if you’re are looking to retire, keep continuity in the business or just to incentivise management/key employees.
 
Company buyback of Shares – a transaction between a company and a leaving shareholder where the company buys back the shares from the leaving shareholder. It is usual for the Company to then cancel these shares.

Employee share ownership – You can put in place an employee ownership scheme/employee benefit trust.
 
Wind up the Company – if no buyer can be found, no suitable management buy-out candidates or any other suitable options, the company may be wound up.
 
MLP Law can help and advise you on selling your business. Please speak to our Commercial team and ask for our Guide to Selling your Business on 0161 926 9969 or email us commercial@mlplaw.co.uk.   

Compulsory Retirement and Age Discrimination

Although there is no longer a default retirement age implied by law, some businesses still have a fixed retirement age, based on the particular needs of their organisation. For many other employers, employees dictate their retirement date; making the decision on their own terms, at the natural end point of their career.
 
This blog considers the key considerations for an employer, wanting to impose a compulsory retirement age upon employees.
 
Age Discrimination Risk
At first glance, a compulsory retirement age – that is requiring an employee to retire at a set age – is direct age discrimination under the Equality Act 2010. Under certain circumstances, however, a fixed retirement age can be objectively justified. This means that an employer may be able to objectively justify the fixed retirement age used for compulsory retirement, by showing that it is a proportionate means of achieving a legitimate aim.
 
Legitimate Aims
The legitimate aim will depend on the nature of the employer’s business and the jobs involved, but they can generally be summarised as those promoting intergenerational fairness and dignity and could include:
 
•         promoting access to employment for younger people
 
·         the efficient planning of the departure and recruitment of staff
 
•         sharing out employment opportunities fairly between the generations
 
•         ensuring the mix of generations of staff so as to promote the exchange of experience and new ideas
 
•         rewarding experience
 
•         cushioning the blow for long-serving employees who may find it hard to find new employment if dismissed
 
•         facilitating the participation of older workers in the workforce
 
•         maintaining health and safety standards
 
Role Specific
In demonstrating that the policy is a proportionate means of achieving a legitimate aim, it will be very difficult to justify having a fixed retirement age that applies to an entire workforce, where that workforce carries out a variety of different jobs or roles. Employers will therefore be better able to justify a fixed retirement age where it is for a particular job or role, for example where there is strong evidence of declining capability with age and health and safety concerns. In such cases, however, alternatives that would achieve the same aim without relying on an age discriminatory measure, must also be assessed. Any decision to enforce a compulsory retirement age would therefore need to take account of the results of such assessments, rather than be based solely on age. An example of such an alternative could include regular medical assessments of continuing capability to undertake the role in question.
 
Indeed, the Employment Appeal Tribunal recently set out some considerations that could be relied upon when justifying a set retirement age of 67, regarding the role of professor at the University of Oxford. These were:
 
1. inter-generational fairness;
2. succession planning; and
3. promoting equality and diversity (allowing for a younger, more ethnically diverse workforce to fill vacancies).
 
Interestingly, the University’s policy was viewed as justifiable for a professor of history but not a physics professor. The dismissal of the physics professor, through the University’s compulsory retirement age, was found to amount to age discrimination, as statistical evidence demonstrated that the policy only produced a small number of vacancies and could not therefore be justified as proportionate.
 
Evidence
Moreover, employers are expected to be able to produce evidence to support their contentions. That evidence need not always be concrete but should reflect that the decision was based on more than simple assumptions. Similarly, employers do not have to have considered whether or not a particular provision was justified at the time it was introduced (although a prudent employer will do so); it is therefore possible to establish justification retrospectively.
 
Policy
Needless to say, employers should use a policy document (contained in a Staff Handbook) to explain and expand upon any rationale behind a fixed retirement age. This will allow an employer to demonstrate the various factors that were taken into consideration before a fixed retirement age was implemented.
 
If you would like to advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.