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Month: February 2024

New flexible working regulations come into force in April 2024

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From 6th April 2024, The Employment Relations (Flexible Working) Act 2023 will come into force with new flexible working regulations coming into effect. Noel Deans, Partner in the Employment team, outlines the key changes.

The new regulations incorporate a broader definition of flexible working; the traditional flexible arrangements, such as part-time work and job-sharing, remain valid, with provisions for hybrid working and reduced hours being included. They also extend the right to request flexible working arrangements to all employees, removing the previous limitations based on tenure or parental status.

The updated legislation aims to focus on setting the right conditions so that employees and employers can have an open-minded conversation about what flexible working arrangements might be possible in any given context, allowing all employees to request changes to their work arrangements and requiring employers to properly consider those requests, although they do not have to necessarily agree to them.

The headlines of the new regulations are:

Day one right
Employees will have the right to request flexible working from day 1 of their employment.
Previously 26 week’s service was required before making a request.

Two month response time
Employers need to respond to each request within two months.
Previously this was three months.

Two requests in 12 month period
Employees will be able to make a second flexible working request within any 12-month period.
Previously this was one request per 12 months.

However an employee may have only one ‘live’ request for flexible working with their employer at any one time. Once a request has been made, it remains live until:

– A decision about the request is made by the employer.
– The request is withdrawn.
– An outcome is mutually agreed.
– The statutory two-month period for deciding requests ends.
– A request continues to be live during any appeal or any extension to the statutory two-month decision period that an employer and employee may have agreed.

Employers must consult with employees
Unless the employer decides to agree to the employee’s written request in full, they must consult the employee before they make a decision. In such cases, the employer should invite the employee to a consultation meeting to discuss the request. This duty aims to prevent employers from defaulting to ‘no’ without first engaging with the employee when responding to individual requests.

Employees no longer need to explain effect of changes
The new regulations remove the requirement for employees to explain what effect the change applied for would have on the employer and how that effect might be dealt with. However, a request must be in writing and state that it is a statutory request for flexible working, and include:
– The date of the request.
– The change the employee is requesting to the terms and conditions of their employment in relation to their hours, times or place of work.
– The date the employee would like the change to come into effect.

Effectively and fairly dealing with a request for flexible working
It is crucial for employers to engage in a reasonable and timely manner when considering flexible working requests. It is important to maintain transparent communication with employees throughout the process, providing clear reasons for accepting or rejecting a request.

In handling a request, and any information that the employee discloses as part of that request, employers must not discriminate unlawfully against the employee in relation to any of the protected characteristics set out in the Equality Act 2010. The nine protected characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Employers will retain the ability to refuse such requests based on specific grounds. A decision to reject a request must be for one or more of the following business reasons:

– The burden of additional costs.
– An inability to reorganise work amongst existing staff.
– An inability to recruit additional staff.
– A detrimental impact on quality.
– A detrimental impact on performance.
– A detrimental effect on ability to meet customer demand.
– Insufficient work available for the periods the employee proposes to work.
– Planned structural changes to the employer’s business.

How Blaser Mills Law can help
As the UK adopts new flexible working rules it is important to stay informed on the expanded eligibility criteria, diverse types of flexible working, and the considerations surrounding these arrangements.

Blaser Mills Law recommends that employers review their contracts of employment and flexible working policies and procedures to ensure that they are compliant with the new flexible working rules. If you would like access to advice or need further guidance on flexible working, please contact the Employment Team at Blaser Mills Law on 020 3814 2020 or email enquiries@blasermillslaw.co.uk.

Volunteering for the One Can Trust

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The team at Blaser Mills Law had a fantastic time volunteering for the One Can Trust at the local Sainsbury’s in High Wycombe.

The One Can Trust is a foodbank operating in High Wycombe and South Buckinghamshire since 2011. They work with local organisations, including Bucks Council, housing associations and the Department for Work and Pensions, to provide weekly food parcels to those in need.

Through the kindness of the High Wycombe locals, our volunteers managed to collect 32 crates worth of food donations that will help serve our local community.

We would like to thank those who supported us on the day and the One Can Trust for the opportunity.

To find out how you can donate or help click here: One Can Trust – Foodbank serving families in need

Blaser Mills Law grows Corporate team with addition of Oksana Howard as a Partner

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We are delighted to announce that Oksana Howard joins the firm as a Partner in the Corporate department. With experience in corporate law at a renowned City firm and a Central London practice where she was head of the Corporate team, Oksana brings valuable expertise to Blaser Mills Law.

Specialising in cross-border transactional M&A, Oksana advises both domestic and international clients, with a strong focus on the US market. Her expertise involves a wide range of corporate transactions, including buying and selling companies and businesses, management buy-outs, joint ventures, reorganisations, mergers, de-mergers, private equity deals and investments.

Drawing upon her Ukrainian background, Oksana often supports Eastern European companies, businesses, and high-net-worth individuals with legal matters that demand expertise in English law.

Edward Lee, Partner and Head of Corporate commented: “We are delighted to welcome Oksana to the Corporate team. Oksana’s experience and expertise in handling complex corporate transactions, coupled with her international perspective, will further strengthen our ability to deliver exceptional service and value to our clients.”

Oksana added: “The reputation of Blaser Mills Law and the continual achievements of the corporate team means this is an exciting move for me. I very much look forward to collaborating with the wider team and delivering unmatched value to our clients.”

Hold the front page: The Courts have considered the Building Safety Act

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For the first time, the Building Safety Act has been tested in the Courts. Kate McLauchlan looks at the impacts for developers and commercial landowners.

Origin of the Building Safety Act 2022

The Building Safety Act (“the Act”) was introduced following the Grenfell Tower fire in June 2017 and the Government’s subsequent review into the safety of high-rise residential buildings in particular.

The Act provides clarity as to how buildings should be constructed, maintained and made safe and applies to all buildings with additional requirements for ‘Higher Risk Buildings’ i.e. residential buildings at least 18 meters in height or with at least 7 storeys.

In particular, the Act entitles an ‘interested person’ to apply to the Courts for a Remediation Contribution Order (“RCO”) to require a former or current landlord, or the original developer, to contribute to the cost of remedying ‘relevant defects’ in a ‘relevant building’.

Triathlon Homes LLP v Stratford Village Development Partnership, Get Living Plc and East Village Management Limited

On 19 January 2024, the Courts handed down the first judgment clarifying when the Courts may grant an RCO.

In this case, Triathlon Homes (TH) owned affordable and social housing in the blocks of flats in question. The remaining privately rented units were owned by subsidiary companies of Get Living Plc (GLP) which was a real estate investment trust which also owned Stratford Village Development Partnership (SVDP), the company which originally developed the properties. The flats were managed by East Village Management Limited (EVML) which was jointly owned by GLP and TH.

In November 2020, EVML discovered serious fire safety defects on the external cladding of the building. A remediation programme began very quickly with works funded by grants from the government’s Building Safety Fund (BSF). The total cost was expected to be over £24.5 million, of which TH was liable for £16.03 million. TH therefore applied to the Courts for an RCO against SVDP (the developer) and GLP (its parent company) for that amount.

The case turned on whether it was ‘just and equitable’ for an RCO to be made. The Court did not agree with SVDP/GLP’s arguments that an RCO was unnecessary because the remedial works, which had already commenced, were due to be fully funded by the Building Safety Fund. Alternatively, SVDP/GLP argued that TH should pursue the contractor or consultants involved in the designing and construction phases for damages under normal contract rules. The Court was not persuaded by this argument either.

The Court decided that RCOs are intended to be a ‘no-fault’ remedy and therefore the Court did not consider it relevant that TH had the possibility of succeeding in a claim against another contractor when deciding whether it was ‘just and equitable’ to make an RCO. The Court held that the purpose of the legislation is to allow applicants to source alternate funding without needing to be involved in lengthy, expensive litigation. It considered that it was just and equitable for remediation costs to fall to the original developer, especially as it had been readily supported by its wealthy parent company.

Although funding was made available by the BSF, the Court found that there was strong public interest in reimbursing those funds where possible as the Fund would be put at risk without further support.

The Explanatory Notes to the Act place the original developers at the top of the hierarchy for liability wherever possible, ahead of freeholders and subsequent landlords.

What does this all mean?

The important message from this recent case is that not only does this legislation impose liability on developers and landlords alike, but also the Courts are very willing to uphold Parliament’s intention to make those entities accountable for the enormous, but necessary, remediation costs involved in improving building safety.

This case demonstrates that parent companies are not exempt simply because they are separate entities. The Courts will always consider all of the facts before deciding whether it is fair to make an RCO.

Developers will most likely be placed with the burden of meeting remediation costs. However, where a developer does not have the financial resources to do so, those corporate entities with the deepest pockets are likely to be pursued first in practice, wherever they fall on the hierarchy of liability. Therefore, this case should put all entities on notice of how they may be implicated if remediation works are needed, irrespective of whether or not they are at fault. This may include management companies and landlords.

If faced with an application for an RCO, the entity in question should consider the hierarchy of liability and submit their own RCO application if necessary.If you need assistance with the Building Safety Act or any property litigation or construction matter, please contact Blaser Mills Law on 020 3814 2020 and ask for Sara Davies for Property Litigation or Tess Turner for Construction.

This article is for general information only and does not constitute legal or professional advice.

Navigating divorce finances

Posted on by fluroltd

Navigating divorce finances

Divorce is often a challenging and stressful process, especially when it comes to dividing financial assets and property.

A recent Nuffield-funded research study titled “Fair Shares? Sorting out money and property on divorce” sheds light on the intricacies of this issue in England and Wales. Led by Professor Emma Hitchings at the University of Bristol, the study aims to provide a comprehensive understanding of how the current legal framework functions and its impact on divorcing couples.

Naim Qureshi, Senior Associate, from the Family and Divorce team at Blaser Mills Law outlines key findings from the study.

Financial context

Contrary to media portrayals, the study reveals that most divorcees involve modest assets, with a median total asset pool of £135,000. This means that the average picture for divorcing couples is far removed from what you might see in the news.

Financial vulnerability is pronounced, especially among women and mothers. This was partly because they were less likely to work full time and on average earned less than their husbands primarily because of the impact of having children on their employment. They also tended to accumulate less pension during the marriage as a result of this.

Lack of financial and legal knowledge

The study also highlights the lack of awareness among a significant number of divorcees regarding the family and their ex-spouses’ finances which creates further vulnerability. Although 60% of divorcees turn to a solicitor for advice, 40% do not and the study stresses the need for authoritative, clear, and accessible information sources to navigate the complex landscape of financial settlements on divorce.

A personalised approach

The study underlines the need for a personalised approach in reaching financial arrangements during divorce. Although the factors that are taken into consideration when looking at a financial settlement are set out in legislation, because of the individual circumstances, no two cases are the same so it’s important to seek help from a professional that will offer tailored advice.

Sorting out finances

The research unravels confusion around dispute resolution methods and legal support, with cost concerns deterring many from seeking legal assistance. Only 32% of divorcees used legal services.  

Worryingly, 36% of divorcees stated that they had not made any financial arrangement with their ex-spouse when they divorced. The study highlights the potential benefits of legal oversight in ensuring fair financial arrangements and when using a lawyer, the research showed that couples were more likely to consider the pension arrangements, on-going spousal maintenance, and a greater share of the home for the wife.

Splitting equally – is not the norm!

It’s important not to assume you will both get a broadly equal split, the study reports that only 28% of divorcees received approximately half of the total asset pool. Unequal distribution is often the case because of the individual circumstances, needs, and objectives of the divorcees.

Pensions, assets, and debts

The study highlights lack of awareness and understanding of pensions, emphasizing their significant role in determining post-divorce financial positions. Pensions are often one of the largest assets in a divorce. The research showed a lack of interest in the pension and a view that it should remain with the person who contributed to the pension.

Achieving a financial clean break

A significant proportion of divorcees aspired to achieve a clean financial break and having no financial ties with the ex-spouse. Spousal maintenance arrangements were primarily used to address post-divorce living adjustments rather than serving as a perpetual income source. Maintenance is not the meal ticket it was.

In conclusion, “Fair Shares?” provides valuable insights into the challenges faced by divorcing couples, shedding light on the complexities that influence financial decisions and outcomes in England and Wales. Understanding the intricacies of financial arrangements during divorce is essential, and the study’s recommendations aim to help divorcing couples better prepare for what may lay ahead.

For further information or advice please contact Naim Qureshi on 01494 781356 or email naq@blasermills.co.uk.

Protecting your brand – Ways to handle parallel imports

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2024 update

The UK’s departure from the European Union has had an inescapable impact on cross-border trade. One important aspect that has not grabbed headlines but has had major implications for domestic owners and exclusive licensees of intellectual property rights (IPR) such as trade marks in the UK, lies in the changes to the law relating to parallel imports and exhaustion of rights.

Parallel imports and exhaustion of rights

Normally, any trade, including import and export, of branded goods (e.g. goods bearing a registered trademark) can only be done with permission of the owner of the IPR. This permission is typically given to a licensed distributor. Parallel importing is where genuine IP-protected goods – not counterfeits – are imported from one territory into another . Problems arise if the territory into which the goods are imported is meant to be the exclusive sales territory of a specific licensor and not the importer.

While the default position should be that any imports and exports need the IPR owner’s permission, the EEA adopts a rule known as exhaustion of rights. This states that where the branded goods are sold in one EEA country with the IPR owner’s permission, those goods can lawfully be sold or imported/exported into any other EEA country without seeking any further permission.  In other words, once placed on the market in the EEA the right to prevent the further onward sale of those goods are exhausted. This means that ownership of a registered trade mark in the UK cannot by itself stop the sale of genuine goods bearing that trade mark, into the UK from the EEA.

The Brexit impact

Prior to Brexit, IPR-protected goods that were sold legally in the UK could (subject to any contractual limits set by the IPR owner) be freely exported to any other EEA country under the exhaustion of rights rules, and vice versa.

The legal position following Brexit however, created a more uneven legal position.

Branded goods sold in the UK can no longer be freely exported to the EEA without permission, as the IPRs are no longer considered exhausted within the EEA by being placed on the UK market. UK businesses looking to export branded goods into the EEA now need to seek the permission of the IPR owner(s) in the EEA to export these, with the risk that the IPR owner may refuse that permission and prevent the export.

Owners of IPR in the UK cannot, however, wield this same power over branded goods imported into the UK. This is because IPR in branded goods sold in another EEA country by, or with the consent of the IPR owner in that country are still deemed to be exhausted in the UK, and so can still be freely imported for sale in the UK market even without the UK IPR owner’s permission.  

This poses particular issues for UK exclusive distributors of branded goods because goods sold under the brand elsewhere in the EEA can still make their way legally to the UK market via import, undermining the distributor’s exclusivity. It similarly risks reputation damage to brand owners by undermining their exclusive distribution channel, through which a brand owner would typically control its brand prestige and reputation in the UK.

In 2021-22, the UK government ran a consultation to address this legal mismatch but concluded that there was not adequate grounds to justify changing the approach, despite its impact on brand owners and exclusive distributors. The government noted in its response that “any change to the exhaustion of rights framework for the UK has the potential to affect many business sectors and consumers“.

What Businesses Can Do

As the legal position on parallel imports is not expected to change in the medium term, it is vital that any distribution agreement granting exclusivity in the UK is looked at carefully, and suppliers use the tools at their disposal to identify, prevent and deter parallel imports.

For UK exclusive distributors

Exclusive distributors should always request the right to pursue any claims for third party IPR infringement. This is because, although importing is allowed without the IPR owner’s consent, the use of a UK-registered trade mark in UK advertising without consent of that trade mark’s owner is still unlawful. The UK Supreme Court has confirmed that this applies to parallel import sales as well as to sale of counterfeit goods. An exclusive UK distributor with a right to bring claims for trade mark infringements on behalf of the IPR owner can use this right to demand a stop to any advertising of goods in the UK that might lead to a parallel import. This can help to reinforce their exclusivity.

For suppliers appointing exclusive distributors

  • Suppliers appointing a series of separate exclusive distributors across different countries should ensure that their agreements allow each distributor to sell the supplier’s goods in their designated territory, but not into other specific territories where the Supplier has granted exclusivity to another distributor.  Such contracts should also build in remedies if these divisions are contravened, for example rights for the Supplier to terminate or remove a distributor’s exclusivity. This would allow a Supplier contractual recourse against a distributor who parallel imports goods. Additionally, contracts should control what a distributor can do with excess stock held by it upon termination, or (for industries with seasonal stock changes) at end-of-season.
  • Beyond the contract, suppliers can also use commercial tools to monitor the market, to ascertain whether parallel imports are happening and if so, how many. Investigative tools can indicate price and origin of goods; while identifying products with tell-tale packaging or labelling differences might demonstrate that they originated outside the UK market.
  • Suppliers can also seek to influence the buy-side of parallel imports by incentivising customers to shop through the Supplier’s authorised distribution channels instead. This aims to deter customers from buying parallel imports, so reducing demand for such imports. Popular incentives include loyalty schemes for shopping through authorised channels, or offering a customer service that exceeds what is offered by the parallel importers. By creating a customer service culture or rewarding loyalty, a Supplier can enhance its brand far beyond the products that are being parallel imported.

For further information please contact Rebecca Cooper on 01494 932614 or email rac@blasermills.co.uk.