We have appointed Jan Cunningham as our new Managing Partner in a development that described as ‘a positive, natural progression as the firm continues to evolve’.

Now employing 53 staff between our Belfast city centre and Ballyhackamore offices, we have continued to sustain significant growth year on year and experienced our most successful year to date in 2022.

An experienced lawyer recognised by the Chambers and Legal 500 directories, Jan Cunningham has been a partner at Millar McCall Wylie since 2011 and leads our employment law department.

Speaking about his new role, Jan Cunningham said: “I am extremely honoured to be stepping into the role of Managing Partner, following in the footsteps of Peter McCall, who will continue to be as active as ever, leading our Real Estate team with his invaluable expertise. The firm has a talented and experienced board of directors and along with our Chief Operating Officer, I know I will benefit from continued support and direction.

“We have ambitious plans across all areas of the firm, underpinned by our first class team and the support of my fellow directors. Our focus is on growing client work whilst cultivating an employee experience that attracts and retains the very best talent. Maintaining a positive culture as we continue to scale is key.

“I would like to thank the whole team at Millar McCall Wylie for their ongoing support as well as our clients for their trust, partnership and loyalty,” Jan Cunningham said.

One of the founders and outgoing Managing Partner Peter McCall added: “I am delighted to be handing over the reins to Jan. He is extremely well regarded by his colleagues, clients and peers and is ideally positioned to help us deliver the growth plans we have in place, whilst continuing to nurture our progressive, inclusive company ethos.

“We are growing and that is thanks to driven people throughout the firm. This development of Jan’s role is a very positive, natural progression as the firm continues to evolve. Everyone at Millar McCall Wylie congratulates Jan as we embrace this next chapter with enthusiasm,” Peter McCall said.

In 2005, Ms Bacon joined Advanced Fire Solutions LTD as a bookkeeper and within three years she had married the managing director and majority shareholder, Mr Bacon. In that same year, she became a director and shareholder.

Mr Ellis joined the company in 2012 and in five years he replaced Mr Bacon as the managing director. However, Mr Bacon stayed as the majority shareholder of the company.

In August 2017, Ms Bacon informed Mr Bacon that she wanted a separation but she desired to remain in the company after the divorce. This began an acrimonious divorce process. Allegations were made against Ms Bacon that alleged misuse of company IT, though the police found the claims to be baseless. Ms Bacon was then suspended from the company in January 2018 and, later that year in June, she was dismissed by a letter that was signed by Mr Ellis.

Ms Bacon brought a complaint of unfair dismissal and direct discrimination on the grounds of sex, marriage, and civil partnership to the tribunal. The ET held that Mr Ellis had treated Ms Bacon unfairly due to her divorce proceedings and he had sided with Mr Bacon.

This was due to Mr Ellis withholding Ms Bacon’s dividend payments, stopping her share loan repayments and diverting them to Mr Bacon, allowing Mr Bacon to use company funds to pay for his divorce proceedings, disregarding Ms Bacon’s grievance and filing a police report against her. The Tribunal Judge ruled that,

“Mr Ellis simply has no other explanation … other than he was siding with Mr Bacon, whom he no doubt felt was where his future lied within the company rather than that with Mrs Bacon.”

Mr Ellis successfully appealed to the Employment Appeal Tribunal. The EAT asked the question whether it was Ms Bacon’s marital status which was the cause of the treatment and not the fact that she was married to Mr Bacon.

To answer this question the Judge considered the objective test set out in Hawkins v Atex Group Limited [2012] ICR 1315. Under this authority, the EAT found that the ET failed to construct an appropriate comparator, i.e. someone who was in a close relationship with a majority shareholder but was not married to them. The Tribunal should have considered the fact that Ms Bacon was married to the company’s majority shareholder and whether she was treated unfavourably due to her marital status, rather than being married to a specific individual.

The  EAT did acknowledge that Ms Bacon’s treatment from Mr Ellis was bad and that they allowed the appeal with “a very heavy heart” but “the reason for the unfavourable treatment was that Mrs Bacon was married is not, in all the circumstances, sufficient in my view”.

Although this is an English Judgement, it would likely have persuasive value in NI, as marriage and civil partnership is one of the lesser spotted characteristics in NI Industrial Tribunal proceedings.

The EAT affirmed that the law in this area is for protection of people who have received less favourable treatment due to their marriage or civil partnership status, not because of who they were married to. It was only in 1975 with the Sex Discrimination Act that people first gained the protection from discrimination based on marriage or civil partnership. This was at a time when several industries in the United Kingdom still had a marriage bar for women entering the workplace. Furthermore, many of the cases of marriage and civil partnership discrimination are brought in conjunction with claims of sex discrimination, as this case was in the ET. It is, therefore, important to consider the matter as a whole from both angles.

For more information or advice please contact Jan Cunningham , David Mitchell or Niamh McMonagle in our Employment Team

We are delighted to announce our partnership with Cancer Fund for Children NI which will seek to raise valuable funds, awareness and support for the local charity.

Emma Rooney, Associate Director , leads the charity committee at the firm: “We are delighted to have nominated Cancer Fund for Children NI as our charity partner for 2023. We have prepared a busy plan of fundraising events across the firm for the year ahead and feel privileged to be helping the important work of the charity in doing so.

“Cancer Fund for Children NI carries out a vital role, with the vision that no child should face cancer alone. We at Millar McCall Wylie are behind that vision 100% and hope to raise as much money, awareness and support as possible to assist in helping children, young people and families affected by cancer in Northern Ireland,” Emma Rooney said.

Speaking about the partnership, Jordana Stoney-Wilson of Cancer Fund for Children NI added: “It is an absolute pleasure to be chosen by Millar McCall Wylie as official charity partner for 2023.

“We are thrilled to be working together on a calendar of activity that will help us support children and families impacted by cancer, as well as providing opportunities for team bonding and positive workplace wellbeing. Valuable partnerships such as this help in our work towards ensuring no child has to face cancer alone,” Jordana Stoney-Wilson said.

To donate throughout the year please go to https://www.justgiving.com/page/mmw-legal-1676298298702?utm_source=Sharethis&utm_medium=one_page&utm_content=page/mmw-legal-1676298298702&utm_campaign=pfp-email&utm_term=96d506bd877c4123b727e76813c68499

Our residential property team  has said that it sees opportunities and a growing sense of optimism emerging in the residential property market in 2023.

With the property market landscape having changed significantly in recent years, we believe 2023 is seeing stability return to the market but is equally urging their clients to be realistic about current market conditions and their affordability.

Fiona McFlynn, Associate with the firm, comments: “The overarching feedback from our estate agent partners is that the market is returning to a sense of normality. The normality of today is of course very different from market conditions following the 2008 property crash as the credit crunch caused considerable distress for home buyers. We are advising clients to remain optimistic that options are out there if they do choose to buy a property this year,” Fiona said.

The importance of understanding personal affordability and the position with mortgage interest rates available from UK lenders remains the firm’s core advice:

“Being realistic is key given the recent changes in interest rates,” adds Grant Robinson, Associate.

“Whilst it seems very obvious, speaking with a financial adviser before you even start the process of looking for a property is of vital importance. This will allow you to gain an important understanding of your price range when looking at properties and ultimately allow you to enter an offer with confidence,” Grant said.

Engaging a conveyancing solicitor as early as possible in the process is a step the firm believes can also make a real difference in the home buying process:

“We find a majority of clients typically engage a solicitor as one of the last stages in the process, adds solicitor Ross Carrigan.

“However, bringing a conveyancing solicitor into the process as early as possible allows us to discuss specific circumstances and provide advice and guidance on the process. It allows us to take steps that can reduce the overall timescales of the transaction, for example, on a sale, requesting Title Deeds from the current Lender prior to the property going sale agreed. Bringing a solicitor into the mix earlier shouldn’t cost more financially but it can ultimately save time,” Ross said.

Millar McCall Wylie’s residential property team is hosting an open advice session at Guillemot Café in Ballyhackamore, East Belfast, on Thursday 9^th March (430pm – 7pm). The team will be on hand to offer free bespoke advice, with complimentary coffee and food provided by The Guillemot.

Contact us for information on tel 02890 200050.

High Flyers: From European Cup winner to a career in law for Jan

One of the largest retail schemes in Northern Ireland, Rushmere Shopping Centre in Craigavon, has been acquired by local investment company Killahoey Limited in what is believed to have been one of the most significant retail transactions in Northern Ireland for several years.

Purchaser Killahoey Limited, a joint venture between Sheephaven Investment Company and May Street Capital, has saved the complex from administration and ensured that it remains under local ownership.

Millar McCall Wylie acted for the purchaser in the acquisition:

“We extend our congratulations to Killahoey Limited on their acquisition of Rushmere and are extremely proud to have played a part in the process,” said Peter McCall.

“This successful transaction is one of the most significant we have seen in the Northern Ireland retail market for several years and the result of foresight and ambition on behalf of the purchaser. Our team worked hard within an extremely tight deadline to ensure the acquisition completed smoothly and quickly.

“A transaction of this size involving a scheme of such scale shows great confidence in the local retail market. Rushmere attracted serious interest from national and international institutional investors.

“The acquisition by Killahoey represents a significant coup by a local investment company and is a testament to the ability and experience of its Promoters. We are seeing more and more local investment in retail which is hugely encouraging. We are certain that Rushmere Shopping Centre will go from strength to strength under its new ownership,” Peter McCall said.

Speaking on behalf of Killahoey Limited, Stuart Draffin said:

“We appreciate the extensive efforts and commitment extended by all involved, especially the team at Millar McCall Wylie, to make this transaction happen quickly.

“We believe Rushmere is an excellent asset which has been unquestionably well asset managed throughout its history. This has resulted in it being one of the premier retail destinations in Northern Ireland.  We are delighted for the opportunity to be part of its future.”

Solicitor Niamh McMonagle, has been awarded two data protection qualifications from the International Association of Privacy Professionals (IAPP). A specialist in employment law, Niamh is now a Certified Information Privacy Manager and Certified Information Privacy Professional (Europe).

One of a small number of solicitors in Ireland to achieve these IAPP certifications, Niamh will now use her knowledge to help businesses design and implement privacy programmes that comply with General Data Protection Regulation (GDPR). Niamh is also now qualified to provide data protection training to organisations of all sizes and scales.

“These qualifications will really help me support my clients,” said Niamh

“Essentially, if someone can be identified from data that your organisation stores, it is considered to be ‘personal data’ in accordance with the data protection legislation and you are legally obliged to be able to account for it,” Niamh continues.

“You must have must a lawful basis for processing personal data and be transparent with the people providing the data about how it is being stored and processed. That could be your customers, staff, subscribers, suppliers or partners.”

Having a privacy programme in place is not only best practice, it also encourages a sense of trust and transparency between an organisation and the people it connects with. Importantly, storing data properly also reduces the threat of a cyber attack or data breach, which can be hugely costly and damaging to an organisation.

“Data privacy and protection is a complex and, let’s face it, not very exciting topic for many!” Niamh  adds. “It is an area that lots of organisations, understandably, don’t have at the top of their agenda. When you consider, however, the risks of not having a proper programme in place, it’s something you can’t really afford to ignore and it should be considered in any risk management review.

We have experienced our “biggest year to date” across all aspects of its legal services, with particular growth noted in our corporate and media law departments.

Ranked by Chambers and Partners as number one Northern Ireland firm for Media and Entertainment law, Millar McCall Wylie was engaged to work on major global productions throughout 2022, including Netflix feature ‘The School for Good and Evil,’ Focus Features / Regency Pictures film ‘The Northman’ and the upcoming Blade Runner 2099 TV series for Alcon Entertainment & Amazon Studios which will film in Northern Ireland in 2023. Its team, led by Director Abbie Long, has also provided legal services on several successful TV series including Derry Girls, Line of Duty and Bloodlands.

Within its corporate law team, the firm has handled some of Northern Ireland’s most valuable and significant acquisitions over the last twelve months.  These included acting for Cookstown Cement Group in its purchase of Lafarge cement business, one of the largest trade deals of the year. The firm acted for Cardinal Capital in its £30m investment in Uform, a Northern Irish kitchen company; for Traction Finance and its management in its partial sale to Radius Vehicle Solutions and for Cordovan Capital Management in its acquisition of specialist architectural powder coating business Powdertech.

Millar McCall Wylie Director Damian McParland leads the corporate team at the firm as well as working on a number of the media projects:

“The continuing strength of the firm across the board is extremely encouraging and we can be very proud of every member of our team for providing first class service to our clients. I am particularly delighted to see our client base within the corporate and media law teams having grown so significantly, with 2022 being our biggest year to date in terms of client volume and transaction value.

“Growth like this is down to the expertise of our people and the trust placed in us by our clients. On the media side, Northern Ireland is home to some of the world’s most exciting film and TV productions. It is a great privilege to represent not only Northern Ireland Screen but also a large number of local and international production companies and studios who are, collectively, contributing substantially to the local creative industries and wider economy.

“From a corporate law perspective, there is a sense of ambition and innovation within the local business community that is driving sales and acquisitions. This is a very positive reflection of local entrepreneurial spirit, and we are pleased to work with some of the most influential business owners here.”

Looking ahead, the firm has further growth plans on the horizon: “We’ve recently recruited and will do so again throughout the year as we focus on building on the success of 2022. Whilst we never rest on our laurels, we’re confident we can look towards 2023 with a sense of optimism and a focus on both broadening and deepening our client portfolio,” Damian McParland said.

Peter McCall recently joined some of Northern Ireland’s most influential property specialists to discuss the local real estate sector post-Covid and what the future holds.

Thanks to Richard Buckley at Business Eye for hosting this enjoyable discussion – and to fellow panellists Donall McCann, Duneane Asset Management; Ryan Walker, Magell; Gareth Graham, Oakland Developments & Belfast Commercial Funding and Martin Mallon, South Bank Square.

We are delighted to be lead sponsor at the 2022 Arts & Business Cultural Governance Conference to be held at the Mac on 6th December 2022.

The event is organised by Arts & Business NI

Speaking about the event Jan Cunningham said

“Millar McCall Wylie is proud to sponsor the 2022 Arts & Business NI Cultural Governance Conference. We pride ourselves on being a progressive, ambitious law firm that celebrates and nurtures the talent in our team. To maintain that vision and culture, we place a consistent focus on governance.

“This event will table some of the most important issues organisations of all sizes, scales and sectors should be considering, from diversity and sustainability to financial planning. Thank you to Arts & Business NI for creating a forum that will bring together fantastic speakers and a diverse range of delegates for a morning of discussion and learning.”

Our dedicated Industrial Disease and Hearing Loss Team have had a fantastic level of success in recent years and you can read a few of their stories here

Our team are always on hand to discuss your potential claim if you have suffered as a result of past or current employment

Get in touch with our team on 028 90 200050 or go to our dedicated claims website www.mmwclaims.com

We are delighted to announce the recent appointment of solicitor Leigh Ní Thailiúir to our growing team. A recently qualified solicitor and graduate of Queens University Belfast, Leigh joins the firm’s Corporate team, where she will specialise in a wide range of corporate legal services.

Clare Lenaghan recently attended the Ulster Irish Dancing Championship 2022  , hosted by the  Belfast Regional Branch of An Chomhdhail.

We were delighted to act as principal sponsor of the event and that Clare was in attendance to witness all the wonderful performances and award the successful girls with their prizes.

Congratulations to those who participated and to the organising committee

#lawisn’teverythingwedo

As part of our ongoing commitment to supporting local Sports and Community organisations we were thrilled to continue our long association with the Irish News GAA All Stars and sponsor this years awards.

Pictured with our Head of Corporate , Damian McParland is  Football & Co. Kerry legend Kieran Donaghy.

Huge congratulations to all the athletes who were recognised on the night

With high quality, confidential advice and representation, our experienced solicitors help clients during often difficult times including divorce, separation, financial resolution and complex family cases.
Our in-depth knowledge of all aspects of matrimonial and family law means we can truly offer expertise for everyone.
We want to help make these times in your life as straightforward as possible – and have created a series of short videos for you to watch at your convenience.

https://mmwlegal.com/services/matrimonial-family-law/matrimonialandfamilyadvicehub/

Fiona McFlynn recently made the draw for the Semi Finals of the MMW sponsored Ulster Hockey Kirk Cup

Looking forward to some great matches on 26th November and good luck to all teams involved

https://ulsterhockey.com/millar-mccall-wylie-kirk-cup-semi-final-draw/ 

During the course of their lifetime, most businesses will want to take steps to terminate certain commercial contracts they have entered into for a multitude of reasons.  However, without proper consideration of the terms of the contract, how and when to terminate and the consequences of termination, disputes can arise which may result in a claim for breach of contract against the terminating party.

Therefore, it is important that before giving notice to terminate, businesses take the following steps when seeking to navigate an exit from a commercial contract, so as to minimise the risk of disputes arising:

1. Carry out a detailed review of the terms of the contract in its entirety. Aside from the termination clause, there may be other standard terms and conditions which apply.
2. Check each procedural requirement for termination under the contract. For example, what is the notice period? Is there a specified date as being the earliest date that you can give notice to terminate? Is there a deadline by which you are to give notice? On what grounds are you contractually entitled to terminate?
3. Check what are the consequences of termination (financial or otherwise) under the contract. For example, are there any exit fees? Is there a penalty fee for early termination? Are there any other terms in the contract that survive contractual termination (for example confidentiality clauses or restrictive covenants)?  How will these surviving terms impact your business?

In addition to the above, if your business is seeking to terminate the contract on grounds of repudiatory breach (a breach so serious that the contract could not be honoured in good faith after this breach), this can be a lengthy and technical process, which is likely to require the advice of a Solicitor.

Furthermore, before taking any steps to terminate, the business must consider its overall commercial relationship with the other contracting party.  Have the parties entered into multiple contracts and the terminating business seeks to only terminate one specific contract?  Would termination potentially damage a wider commercial relationship?

Should you have any concerns about your right to terminate a commercial contract, the procedure you need to follow, the grounds you can seek to rely upon and/or the consequences of terminating, then please do not hesitate to contact MMW’s Commercial Disputes Team on 020 90 2000 50 and one of our specialist Solicitors will be happy to assist.

The Parental Bereavement (Leave and Pay) Act (Northern Ireland) 2022 came into effect on 6 April 2022 and received Royal Assent as of Friday 21 October 2022. This is a welcome development as the Act allows working parents to avail of two weeks’ parental bereavement leave (“PBL”) following the death of a child under the age of 18, or a stillbirth (from 24 weeks of pregnancy).

Employees eligible for Parental Bereavement Leave include the following:

• A parent or intended parent of a child that has died (this includes surrogacy);
• A parent who has lived with the child in their own home and had the day-to-day responsibility for the deceased’s child’s care (and this must be for a continuous period of at least four weeks ending with the date of the child’s death);
• A parent who is the child’s “natural parent” as named under the Adoption and Children Act 2022;
• A person with whom the child has been placed for adoption, for so long as that placement has not been “disrupted”;
• An adopter who the child was living with and who has received official notification in respect of the child;
• The partner of the child’s parent (a partner being defined as a person who lives with the eligible person and the child in an ‘enduring family relationship’ but is not the eligible person’s parent, grandparent, sister, brother, aunt or uncle).

Whilst all employees are entitled to take Parental Bereavement Leave, irrespective of service, Statutory Parental Bereavement Pay (“SPBP”) will only be available to those employees who have been continuously employed with their employer for 26 weeks prior to the death of the child and who have earned at least the lower earnings limit for the past eight weeks (current rate is £123 per week).  Eligible employees will be entitled to payment of £156.66 or 90% of their normal weekly earnings, whichever is lower. Those employees who do not meet the requirements, will be entitled to 2 weeks’ unpaid Parental Bereavement Leave.

Parental Bereavement Leave can be taken by the eligible employee at any time within the 56 week period commencing on the date the child died. This allows for eligible employees to take time off at difficult times, for example, the anniversary of the child’s death or around the time of the child’s birthday. The legislation also confirms that paid miscarriage leave will be introduced for employees in Northern Ireland by 6 April 2026.

In light of the recently enacted legislation, we would encourage all employers to update their policies and procedures to include a specific policy on Parental Bereavement Leave and Pay.

Should you require advice or assistance in relation to any of the above please do get in touch with Jan Cunningham, David Mitchell or Niamh McMonagle in our Employment Team.

What is it?

The Register of Overseas Entities is a register maintained by Companies House which requires “overseas entities” that own certain qualifying property in the United Kingdom to provide details of their beneficial ownership.

The register was brought into effect by the Economic Crime (Transparency and Enforcement) Act 2022 to increase transparency particularly around property transactions.

What is an “overseas entity”?

An overseas entity is a legal entity (for example a company) which is governed by the law of a country outside of the United Kingdom.

The definition of “overseas entities” therefore incorporates entities established in the Republic of Ireland, the Channel Islands and the Isle of Man.

When does it take effect?

In Northern Ireland, overseas entities need to register with Companies House if they have purchased a qualifying property in Northern Ireland on or after 1 August 2022 or disposed of one after 28 February 2022.

From 5 September 2022, The Land Registry of Northern Ireland will require overseas entities to be registered with the Register of Overseas Entities before they will accept registration applications for acquisitions or dispositions of qualifying property.

What is a qualifying property?

In Northern Ireland, a qualifying property for the purposes of the Register of Overseas Entities is a freehold estate or a leasehold estate of more than 21 years.

Who is a “beneficial owner”?

Alongside other information, Companies House will record details of the beneficial ownership of every overseas entity.

The Register of Overseas Entities adopts the same definition as that which governs the Register of Persons with Significant Control but, in short, a beneficial owner is one who:-

1. holds more than 25% of the shares in an overseas entity; or
2. holds more than 25% of the voting rights in an overseas entity; or
3. holds the right to appoint or remove a majority of the board of directors of an overseas entity; or
4. has the right to exercise significant influence or control over an overseas entity.

Similar provision applies for trusts and partnerships.

What do I need to do now?

Overseas entities which have or intend to acquire or dispose of property in Northern Ireland should apply to register now with Companies House.

Once Companies House have accepted an application for registration, they will provide the overseas entity with an “Overseas Entity ID”.

It is also important to note that the information, which is provided to Companies House as part of the initial application for registration, needs to be updated annually.

What happens if I do not register?

Failure to register with Companies House is a criminal offence and from 5 September 2022 failure to do so will prevent the registration of any acquisition or disposal of qualifying property in Northern Ireland with the Land Registry.

For further information on the Register of Overseas Entities please contact a member of our Real Estate team on 028 9020 0050.

We are delighted to confirm that we have confirmed four new trainee solicitors on board as part of our ongoing commitment to finding and developing fresh talent.

Cathy Kerr will join our banking and finance team from Queens University Belfast, Patrick Boyle joins the  litigation department from Ulster University, the corporate law team welcomes Molly Rainey from University of Liverpool and Rachel McCullough from Queens University Belfast will specialise in media law..

This is the biggest single intake of trainees made by the firm, typically having recruited two graduates annually. Christopher McCandless, our Chief Operating Officer , believes the ongoing recruitment of up-and-coming lawyers is an important ingredient in their continued success:

“We are extremely happy to welcome another four new trainee solicitors into Millar McCall Wylie this year. Helping nurture new talent keeps our firm and the legal sector overall fresh and forward thinking.

“Throughout the pandemic, we made sure to keep recruiting, keep supporting young solicitors and keep focused on training and development within our existing employee base.

“Without a talented, motivated and well rewarded team, we cannot achieve the ambitious growth plans we have. I’m thankful to say our strategy of continually investing in the best people continues to pay off and we look forward to seeing the careers of Cathy, Patrick, Molly and Rachel develop,”

The Government has published draft legislation and an accompanying policy paper, Capital Gains Tax: Separation and Divorce, detailing changes to the rules applying to transfers of assets between separating spouses and civil partners. The draft legislation will form part of the Finance Bill 2022-2023, which will likely go before Parliament in early 2023. The impact of the changes will be significant for divorcing couples.

Previously, the Office of Tax Simplification (OTS) recommended that the window for ‘no gain no loss’ transfers be extended to allow separating couples at least two tax years after the separation event to make transfers, or an even longer period provided it is reasonable and in accordance with a financial agreement approved by a court. The draft legislation published in July goes beyond these recommendations.

What is Capital Gains Tax?

CGT is a tax on the profit (gain) when you sell something, for example property (that is not your main home), shares or personal possessions such as art, which has increased in value.

CGT is only payable on gains above your tax-free allowance, which the HMRC refer to as the Annual Exemption Amount.

In addition to the allowances, there are also reliefs available. The main relief of note is the Private Residence Relief (PRR), which allows homeowners to sell their main home without being subject to CGT.

Current Law on Capital Gains Tax and Divorce/Dissolution

Currently, spouses and civil partners have until the end of the tax year in which they separate to transfer assets between them without incurring a charge to CGT. This is known as ‘no gain no loss.’ Therefore, if the assets can be transferred before 5th April, no CGT is payable.

In the vast majority of cases, where negotiations take time or Court hearings need to be listed, for example, this timescale is simply unachievable. Once the tax year of separation ends, the couple, therefore, loses the advantage of the no gain no loss rule, and transfers are considered standard chargeable disposals for CGT purposes. This can result in a significant tax liability to be paid by the transferring party.

The New Proposed Changes

On the 20th July 2022, the Government proposed changes to the current CGT in their draft Finance Bill 2022-23. The proposals are that:

• Separating spouses or civil partners can transfer assets between themselves at no gain or loss at any time within three years after the year of separation regardless of whether they are still living together or not. The assets transferred must be subject to an Agreement or a Court Order.
• A spouse or civil partner who separates and moves out of the family home but continues to retain an interest in it will be able to benefit from PRR when the family home is sold later.
• A spouse or civil partner who transferred their interest in the family home to their ex-spouse or civil partner and are to receive a percentage of the proceeds when the family home is sold will be able to use PPR on those proceeds when received provided they applied when they transferred their original interest in the family home. The deferred charge must have been made in accordance with an Agreement or a Court Order.

What will these changes mean?

• Separating finances is often a complicated exercise, which requires a delicate balancing act. With the changes, separating couples will no longer having to worry about a potential CGT liability on transfer.
• The changes will also ensure greater fairness. The old CGT rules could be seen as a tax on divorce, which is unfair given the burden that divorcing parties are already facing and spouses or civil partners leaving the family home are no longer punished with a CGT for doing so.
• Parties will be under less pressure to finalise their financial settlement within 9 months to avoid the consequence of CGT. Also, if parties are currently engaged in court proceedings they will not be punished if their litigation overruns as it can often take 18 months or more to obtain a final order.
• If you agree to a defer charge you will not have to worry about a CGT bill later down line. Depending on what has been agreed or ordered in relation to the deferred charge, this could possibly be 5 or even 20 years later when the property is sold and the deferred charge ends.

The policy objective surrounding the new measures is to make the CGT rules fairer for spouses and civil partners who are in the process of separating. Once the new rules are implemented, couples will have more time to transfer assets between themselves without incurring a charge to CGT. Where that transfer is pursuant to a court order, the couple will have an unlimited time to transfer those assets.

It is essential to take proper legal and financial advice when separating or getting divorced. Please contact our Matrimonial Team on 028 90 200050 for more information and guidance.

Our Clare Lenaghan has welcomed the recommendations of a recent report by a cross-party MP group demanding reforms to laws around rights for cohabiting couples.

Clare believes the recent report from the Women and Equalities Committee, ‘The Rights of Cohabiting Partners’, rightly highlights the long-standing risks faced by cohabiting partners in the event of relationship breakdown or death.

In the report, published in early August 2022, the committee demands reforms to laws which leave cohabiting couples with inferior protections to those who are married or in a civil partnership.

“Cohabiting families are the fastest growing type of family in the UK, having more than doubled from 1.5 million families in 1996,” said Clare Lenaghan.

“Despite this fact, cohabitees are disadvantaged when it comes to legal protection upon separation and death.

“Perhaps most worryingly, there is somewhat of a myth that after a certain amount of time cohabiting, a couple becomes entitled to the same rights as a legally married couple. This is not the case. It was particularly encouraging to hear the Women and Equalities Committee urging Government to inform the public about this common misbelief,” Clare Lenaghan said.

Within its report, the Group calls on Government to legislate for an ‘opt-out’ cohabitation scheme proposed by the Law Commission, which would give cohabiting couples autonomy and protect financially vulnerable individuals. It also expresses concern at the processes involved in accessing a survivor’s pension and keeping the family home after a partner’s death.

Clare Lenaghan continues: “Cohabitees can protect themselves financially through entering into a Cohabitation Agreement. This sets out how property, assets and finances should be dealt with and, whilst it may not be something many couples consider, is extremely helpful should circumstances change.

“It is a positive development to see the Women and Equalities Committee tabling these issues, which unfortunately are all too common for couples and families across the UK,” Clare Lenaghan said.

Commercial Landlords, Is your tenant’s lease coming to an end? Is the property in a bad state of condition and repair? And, is the tenant refusing to put the property back into its state of repair as at the beginning of the lease? You may be entitled to make a dilapidations claim.

For many commercial landlords approaching the end of a commercial lease term, a serious concern is ensuring that the property is put back in the condition it was in at the commencement of the lease term.

Unfortunately, many tenants do not comply with their obligations to keep their premises in the standard of repair required by their lease. The extent of the tenant’s obligations and the remedies available to the landlord for any breach of these obligations are generally set out in the specific clauses of the lease.

This article considers in general terms the options available to a landlord when its premises have fallen into disrepair and the tenant is refusing to comply with its obligations.

What are Dilapidations?

Dilapidations is the umbrella term used to describe any damage incurred to a commercial (or in some instances residential) premises caused by a tenant during the period of their lease. Dilapidation claims are brought to cover breaches by a tenant of covenants under a lease, usually brought before or at the expiration of the lease. These damages can include, but are not limited to, repair work, decoration and reinstatement costs.

What remedies do you have?

It can be said that there are guidelines not tramlines. Ultimately, your remedy will be determined by the specific clauses in your lease. There are also a number of wider practical and commercial considerations such as the state of the property market and the financial position of the tenant.

The first step is to serve a terminal schedule of dilapidations prepared by a building surveyor setting out the damage and losses sustained by the landlord. There are three possible outcomes:

• In an ideal situation liability is not in dispute and an agreed amount is paid to settle the claim.
• Liability is not disputed however an agreement cannot be reached as to quantum.
• The tenant denies any liability whatsoever.

How Millar McCall Wylie help/ What we do

Millar McCall Wylie’s Dispute Resolution team can assist you in seeking to obtain a favourable sum in respect of dilapidations by employing a range of dispute resolution mechanisms. In the event that an agreement is not reached out of Court, we have considerable experience and expertise in successfully issuing and defending Court proceedings in respect of dilapidations.

Are you a landlord seeking advice in relation to any aspect of making a dilapidations claim process, you can contact a member of our commercial team on 02890 200050.

Jan and David discuss the forthcoming changes across NI and ROI to both flexible and remote working within a business. They also outline how we provide in depth legal advice for both
employees and employers surrounding these issues as well as developing invaluable policies and procedures for employers.

We are delighted to once again be a main sponsor at the prestigious Irish News GAA All Stars for 2022.

Our very own Damian McParland attended the launch event recently and we are very much looking forward to recognising great sporting achievement over the past year.

Good luck to all and voting is now open at  www.irishnews.com/allstars

We are delighted that David Mitchell has been elected as the Northern Ireland representative on the UK wide Employment Lawyers Association 

This is great recognition of David’s standing within the profession and we wish him and the Association every success.

We are delighted to announce that we will be sponsoring the Climate Company of the Year category at this year’s Belfast Telegraph Property Awards.

This is a new category for 2022 and it is open to any business connected to the property sector as it seeks to recognise initiatives taken to improve the sector’s environmental credentials.

This is set to be a good night. 

Entries are now open > https://www.belfasttelegraph.co.uk/events/property-awards/belfast-telegraph-property-awards-2022-41778862.html

Good luck to all of the finalists!

New legislation has been introduced in Northern Ireland to allow a broader range of healthcare professionals to certify fit notes, which could previously only issued by a doctor.

The legislation will enable authorised nurses, pharmacists, occupational therapists, and physiotherapists to certify and issue fit notes along with doctors.

This change will allow patients to receive advice and fit notes from their healthcare professional, without having to separately see a doctor.

Fit notes are also known as a statement for fitness to work and are issued to patients whose health condition impacts their ability to work. If an employee has been off work due to a health condition for more than seven days, a fit note provides evidence to their employer of their absence and offers relevant advice on how to support them to remain in or return to work. They also provide evidence for potential claimants of benefits for those who are out of work or off sick.

The legislation recognises the significant role other healthcare professionals have in providing health and work life balance advice as well as assisting employees to remain in work, where possible.

Allowing a wider range of healthcare professionals to certify and issue fit notes will support and promote better conversations surrounding work and health between employers and their employees by making it easier to obtain advice certified by the most relevant healthcare professional.

The change also compliments the healthcare system as a whole by allowing for, and assisting, the enhanced move towards a diverse and multi-disciplinary workforce whilst also reducing the demand on doctors.

In the future, it is intended for fit notes to become fully digital, meaning that they could be certified electronically and would no longer need to be signed in ink. This should reduce delays surrounding issuing fit notes and ensure that they are more readily accessible, which should be of assistance to both employers and employees.

Please contact our Employment Team for more information

A recent judgment has cast light on the dangers of consciously refusing to invite certain employees to post-work functions.

Ms Rita Leher, 51, a cashier at a London casino, said she felt ‘shunned’ by her co-workers as she was the only person not invited to a work night out. Ms Leher who is of mixed black African heritage, also won claims of unfair dismissal, race and age discrimination at the Employment Tribunal.

Ms Leher had 22 years’ experience in the ‘gaming industry’. The Tribunal heard she had seen numerous colleagues promoted over the years, who were younger and not black or mixed race. However, she had been repeatedly rejected after applying for higher positions within the company.

In May 2018 the Claimant raised a grievance claiming the Respondent had breached their equality and diversity policy. Ms Leher claimed that the company appointed a cash desk supervisor without advertising the role, and complained about not receiving a bonus. Her grievance was dismissed, with the company stating the employee had been appointed following an earlier recruitment exercise and that Ms Leher did not qualify for a bonus. The Claimant was also informed  that she would be subjected to disciplinary proceedings if she made any further discrimination allegations without evidence.

Ms Leher was signed off as unfit for work in August 2018 due to stress. In November 2018, she began a phased return to work but was ‘shunned’ and ‘ignored’ by colleagues on the cash desk, and she felt that this created an ‘uncomfortable’ atmosphere. Her colleagues commenced organising a social event in December 2018 but Ms Leher wasn’t invited.

The Claimant gave evidence to the Employment Tribunal that her fellow cashiers ‘insensitively’ organised the social event in front of her. In reference to this, the Judge ruled that excluding an employee is a ‘detriment at work’ as they lose the opportunity to bond with colleagues.  It was clear that she was being excluded from social events as a result of her submitting a grievance and raising allegations of discrimination in the workplace and therefore there was a finding of victimisation. The Claimant then resigned from her role as a result of the ongoing issues with her employer.

The Tribunal awarded the Claimant £74,113.65 in compensation for her successful claims of unlawful victimisation, unfair dismissal, race and age discrimination.

Should you require advice or assistance in relation to any of the above please do get in touch with Jan Cunningham, David Mitchell or Niamh McMonagle in our Employment Team.

What is it?

Passing off occurs when a person or business uses another trader’s goods or services and, intentionally or not, tries to pass them off as their own. As the well-known 1842 case of Perry v Truefitt states, “a man is not to sell his own goods under the pretence that they are the goods of another man.” This is not a statutory action but a common law tort which protects traders against another business using their goods or service and leading the public to believe that it is the original, identical brand. The tort of passing off is usually used in relation to unregistered trademarks. In 2013, for example, Rihanna successfully won her passing off claim against Topshop, who was selling t-shirts printed with an image of the singer. Another more recent example was in 2019 when BMW, the vehicle and engine manufacturer, obtained summary judgment against a company who registered in the name of BMW Telecommunications Ltd. BMW Telecommunications Ltd, however, argued that they did not advertise under this name and it was simply used for invoicing purposes.

Who can sue?

Traders including companies, partnerships and sole traders need to prove sufficient goodwill, misrepresentation and damage in order to bring a case. The traders must be able to prove that the public would be confused between the two goods or services, which can cause difficulty as the burden of proof is on the trader bringing the claim. There are various remedies available such as an injunction, or suing for damages.

How can it affect your business?

Although all cases under this action turn on their facts, as demonstrated with the Rihanna case, it is vital that businesses obtain permission if using celebrities or brands for commercial gain. The summary judgement granted to BMW indicated that the company attempting to pass off did not need to trade with the exact name in order to have committed the offence. Additionally, the cases of Rihanna and BMW indicate that the tort of passing off allows an avenue for a remedy, even if the trademark has not been registered, as they highlight that the courts are keen to ensure the wrongdoer accepts responsibility, providing brand owners with security.

To receive expert and tailored advice as to how this will affect your business, please contact Caroline Prunty, Jan Cunningham, Emma Rooney or Ashley Black in our Litigation Team.

The case of White v White [2000] established the principle of equality of sharing upon divorce and stated that spouses should share “the fruits of the matrimonial partnership” equally. This general rule should only be departed from when there is a good reason for doing so. Understandably, it is possibly less reasonable to assume that the wealth of one party should be shared equally, in a marriage which has only lasted a couple of months, than in a marriage which has lasted numerous years. Under Article 27(2) (d) of the Matrimonial Causes (Northern Ireland) Order 1978, the Court shall have particular regard to the duration of the marriage when exercising its power in this regard.

One of the most recent cases exploring this principle was E v L [2021] EWFC 60. In this case, the husband argued that because the marriage was short (3-4 years) and childless that the Wife should not be entitled to an equal share of his wealth. This case took in to account a number of considerations. Firstly, when considering that the marriage was childless, Mostyn J dismissed this notion stating that “for the court to start asking why there are no children, and whether this denotes a lesser extent of commitment to the relationship, is to make windows into people’s souls, and should be avoided at all costs.”

The Court then considered whether the length of a marriage should give rise to a departure from the equality principle. Mostyn J noted that no distinction should be drawn between the assets accrued during a short marriage and assets accrued during a long marriage. He stated that there is no reason for these to be treated differently. He found that the difference lies in wealth accrued before the marriage. The statutory regulation in this regard is more to do with the fact that there is less likely to be the same amount of assets accrued over a short marriage than there is over a long one, overall contributing to the marital acquest.

To put it simply, this judgment found that the duration of a marriage should not impact upon the equal sharing principle. In reality, for a shorter marriage the division of assets is somewhat easier and more distinguishable. Whereas, for a couple who have been married for 30  years, the differentiating of assets is a more difficult task and this is most likely what Article 27(2) (d) of the Matrimonial Causes (Northern Ireland) Order refers to.

It is important to consider the principle of equality before entering in to marriage as it may create a financial burden for you if you decide to separate even if you have only been married for a short period of time. For helpful and friendly advice in relation to how to protect yourself financially upon relationship breakdown please contact Caroline Prunty or Clare Lenaghan on 028 90 20 00 50 or email caroline.prunty@mmwlegal.com  or  clare.lenaghan@mmwlegal.com

The Bankruptcy and Companies Master has recently issued updated guidance in relation to the lifting of restrictions on Creditors’ Bankruptcy Petitions.

The restriction on the presentation of new Creditor’s Bankruptcy Petitions will be lifted on Monday 5^th September 2022.  However, the guidance states that this will apply only to those cases which meet the following criteria:

1. The petition debt is grounded on a court judgment, decree or other court order; and
2. The petition is grounded on a statutory demand dated and served on or after 1^st June 2022

This appears to be a further small step towards normal pre-pandemic business in the Bankruptcy Court in Northern Ireland.  However, the restriction on Crown petitions will remain in place until further guidance has been issued and the Master has also stated that guidance on Creditors’ Winding Up Petitions against companies has been deferred until new legislation comes into force in Northern Ireland.

Previous guidance specifically reminded creditors that the Bankruptcy Court is meant to be a Court of last resort and ought not to be used for debt recovery purposes.  This latest guidance reinforces that message to a certain extent.

Creditors who are thinking about pursuing a debt against an individual should act swiftly to obtain legal advice in relation to issuing the relevant court proceedings to obtain judgment in line with the updated guidance.

A copy of the updated guidance is available here:

Should you require any advice in relation to the above, please do not hesitate to contact Caroline Prunty, Emma Rooney or Ashley Black.

The final instalment of our triple header sporting celebration on 14th May was the Ulster Hockey Millar McCall Wylie Kirk Cup final at Stormont.

Glorious May sunshine was the backdrop to a clash between ulster’s top two sides with Lisnagarvey HC holding on to win despite a late rally by Banbridge HC.

Congratulations to Lisnagarvey on an exceptional season.

Pictured presenting the prestigious Kirk Cup is our own Hockey aficionado Christopher McCandless

Next up on our Super Sporty Saturday was the Ulster Rugby Millar McCall Wylie Junior Cup at Kingspan Stadium.

A fabulous event in the local Rugby calendar each year and now our 19th successive year sponsoring

Congratulations to Clogher Valley RFC on their victory this year

Photographed at presentation with Winning Captain was our very own Ulster Rugby legend Jan Cunningham.

On Saturday 14th May 2022 MMW Super Saturday kicked off with our sponsorship of the Equestrian Event at the 2022 Balmoral Show.

We have a long standing history of supporting the RUAS and thoroughly enjoyed watching the young competitors.

Congratulations to Lucy Kent riding Grantstown Snoopy seen here pictured with our very own , and very Summery Louise McNally

Delighted to announce that Grant Robinson has joined the firm as a Senior Solicitor.  Specialising in Commercial and Residential property, Grant will drive continued growth in this area.  Graduating with a law degree from Queens University Belfast and almost 2 years’ experience in Real Estate, Grant spent several years in a suburban practice as a paralegal before deciding to focus on Residential property.

Following the change to the ‘off-payroll working rules,’ otherwise known as the IR35 legislation, on 6 April 2021, HMRC confirmed that businesses would not have to pay penalties for inaccuracies in the first 12 months, unless there is evidence of deliberate non-compliance. However, 5 April 2022 marked the end of the ‘soft landing’ period meaning that HMRC may now enforce financial penalties against businesses found to be in breach of the legislation.

IR35 reform was implemented in the private sector in April 2021 resulting in medium and large-sized businesses becoming responsible for determining the tax liability of their contractors. In recent months we have seen how the “IR35 tests” have been applied by the Tribunal in the Professional Game Match Officials Ltd decision and most recently in the Basic Broadcasting Limited decision.

The latter case, which involved the BBC/ITV presenter Adrian Chiles, exemplifies the complexity of IR35. Contrary to HMRC’s assessments, the judgment concluded that there was no underpayment of tax or NIC, as Mr Chiles was considered to be outside the scope of IR35. This judgment considered all the circumstances as a whole and concluded that he was in business on his own account.  In deciding this the Tribunal took into account the number of clients he had, his ability to take on other roles that “did not bear fruit” and his reputation as a broadcaster.

This is a complex area of law and therefore businesses should seek expert advice when engaging with contractors as a failure to consider IR35 rules could result in HMRC imposing hefty fines. On 27 February 2020, HMRC estimated the reforms could recoup £1.3 billion a year by 2023-2024. This suggests IR35 compliance will be an area of growing interest for HMRC from April 2022, when financial penalties may be issued. HMRC has already commenced a review of the Oil and Gas and Financial Services sectors prior to the ‘soft landing’ period ending. Therefore, now is the time for businesses to engage with their IR35 review process, to ensure compliance and avoid potential financial penalties.

To receive expert and tailored advice as to how this will affect your business, please contact Jan Cunningham, David Mitchell or Niamh McMonagle in our Employment Team

In the following article, Emma Rooney considers the lessons to be learned from the recent Judgment in the case of Lumley v Foster & Co Group Limited and others [2022] EWHC 54 (TCC) in which the Technology and Construction Court in England had to determine, in the absence of a written and signed contract, which entity out of six potential defendants, the Plaintiff had entered into a construction contract with.

The Facts

This case involved a meeting at the property in question on 21 June 2016 and was attended by the builder, Mr Foster and the Plaintiff, a residential homeowner.  At this meeting the parties agreed the scope of the works in broad terms and the contract price of £100,000 (inc. VAT).  No formal contractual documents were provided following this meeting.

The works were carried out but they were so sub-standard that the property was “scarcely habitable” and substantial remedial works were required.  Eventually the builders downed tools with the works remaining incomplete. The    Plaintiff then issued proceedings against six different defendants for breach of contract on the basis that Mr Foster had entered into the contract on behalf of one or all of them.

The Judgment

The Court was required to determine who was the correct defendant?

To answer this question the Judge considered the objective test set out in the case of Hamid v Francis Bradshaw Partnership [2013] EWCA Civ 470:

“The question is what a reasonable person, furnished with the relevant information, would conclude.  The private thoughts of the protagonists concerning who was contracting with whom are irrelevant and inadmissible.”

The Judge found that “the onus was on Mr Foster to make clear that he was not contracting in a personal capacity.”

The Court found that Mr Foster failed to make it clear that he was not acting in a personal capacity at the time the contract was entered into and therefore he had entered into the contract in his personal capacity.

Conclusion

Although this is an English Judgment it is likely to be of persuasive value to the Courts in Northern Ireland when considering this issue.

This Judgment is a good reminder of the importance of having a written contract in place prior to the commencement of any construction works. The contract should clearly identify the contracting parties. This need is heightened by the fact that it is commonplace for builders to trade under various names and under the umbrella of various legal entities.  If a contracting party fails to make the other party aware of the correct identity of the contracting entity at the time of  entering into the contract, that party could be found to be personally liable for any breach of the contract.

This article has been produced for general information purposes only and not advisory purposes.

Should you require advice or assistance in relation to any construction dispute, then please do not hesitate to contact Emma Rooney on 028 90 2000 50.

Licensing law specialist John Finnegan  is urging the Northern Ireland hospitality sector to carefully check and renew their liquor licences in 2022.

The renewal process for every licensed restaurant, pub, hotel and off-licence in Northern Ireland must be renewed every five years, with the deadline of September 2022 now approaching. Following the challenging pandemic period, which caused the hospitality sector a great deal of damage, John points out that the risk of not renewing a license or renewing it inaccurately, is significant:

“During the pandemic, a huge number of hospitality businesses have understandably had to reshape their premises, utilise outside spaces and generally undergo changes in order to keep trading whilst complying with varying restrictions.

“I strongly recommended that operators immediately obtain a copy of the licensing plan for their premises held by the court and check it against the current layout on the ground.  Steps can then be taken to remedy any discrepancy ahead of the renewal deadline.

“If a licence renewal is overlooked and a deadline missed, this can lead to damaging periods of closure or at worst a ‘dead’ licence, which could potentially be terminal for the business.

“Equally it is important to bear in mind that the licence applicant is confirming that no alterations have been made to the premises since the previous renewal without the consent of the court. If this confirmation is given and later proves inaccurate, there is a real risk that the licence can be deemed void at a later date,” John Finnegan explains.

Millar McCall Wylie is currently offering a ‘Licence Health Check’ for the hospitality sector to help operators ensure they are renewing the correct licence for their business and to guide them through the renewal process.

Anyone in the hospitality sector seeking advice in relation to any aspect of the licence renewal process can contact John Finnegan on 02890 200050.

Good luck to all those Primary 7 children and their parents receiving AQE and GL results this weekend.

Key dates for your diary:-

23^rd February 4pm  – Online portal for post primary applications closes

21^st May – notification of post primary allocations

Parents should give careful consideration to the Admissions criteria of their chosen schools. If you have any concerns regarding the construction of a particular schools’ admission criteria and/or its application you should raise any such concerns at the earliest possible opportunity.

Louise McNally in our Education department can assist in this regard. Louise can be contacted on 02890 200050.

We are delighted to announce that Emma Rooney has joined the firm as Associate Director. Specialising in commercial litigation and dispute resolution, Emma will drive continued growth within this area. With a law degree from Queens University Belfast and 11 years of experience, Emma brings strategic focus and expertise to the role. Emma joins us from another leading Belfast commercial law firm.

We have announced that we are once again renewing our sponsorship of Ulster Rugby’s most historic competition, the Junior Cup.

This is the 19th year the firm has supported Ulster Rugby, as part of our commitment to supporting sports from grass roots to elite level.

The Junior Cup is one of the most prestigious and competitive local rugby competitions.

Although the format has changed through the years, the Junior Cup has been in existence since the 1888-89 season. The teams will battle it out for a place in the final which will take place next year at Kingspan Stadium.

Director , Jan Cunningham and former Ulster Rugby player, explained that the firm is proud to once again be backing the sport: “The Junior Cup is a wonderful competition and a great platform for club players to make a name for themselves. We are very proud to lend our support to developing the club game.

“With the Junior Cup final being played at Kingspan Stadium, it is a fantastic opportunity for the finalists’ fans to see great club rugby taking place at the home of Ulster Rugby.”

Jonny Petrie , Chief Executive of Ulster Rugby commented: “Millar McCall Wylie has been a brilliant supporter of Ulster Rugby and we are delighted with the long-term association with the firm.  As well as being a valued sponsor, the firm also provided high quality legal services to Ulster Rugby over the last number of years.”

This year our staff across both offices have donated generously to the Belfast Central Mission Christmas Appeal in order to help ensure that children throughout Northern Ireland get some joy this Christmas.

The work of BCM and similar charities throughout the country play an absolutely wonderful role in supporting families in need of all backgrounds and were thrilled to deliver and witness first hand their efforts.

Huge thanks to everyone who donated

National Minimum Wage Calculations – The Importance of Deducting Staff Expenditure

The recent case of Augustine v Data Cars Limited has demonstrated the importance for employers to accurately calculate National Minimum Wage (NMW) with particular attention to the complexity of wage deductions. This case follows a claim brought by Mr. W Augustine who was employed by the respondent taxi firm, Data Cars Limited. Following the end of Mr. Augustine’s employment with Data Cars Limited, he claimed that he had been underpaid the NMW (in addition to claiming for holiday pay and wrongful dismissal.)

In order to accurately determine how much an employee is paid per hour (and subsequently establish whether this falls above or below NMW), the total remuneration awarded in the relevant pay period should be divided by the total number of hours worked, or deemed to have been worked, by an employee. When calculating the total remuneration awarded to the employee, payments incurred in connection with the employment should be deducted.  This was a pivotal issue in the case of Augustine v Data Cars; the question of whether the expenditure incurred by an employee was in connection with the employment.

During the Claimant’s course of employment at Data Cars Limited, he had the option to either provide his own personal vehicle or rent one from a company associated with the respondent, of which Mr. Augustine did the latter. The Claimant also worked as a ‘gold driver’ at Data Cars Limited, which allowed him to undertake a higher level of work. To work at this rank, the claimant was required to wear a uniform and subsequently hired a uniform from the respondent.

The Employment Tribunal earlier held in February 2020 that the cost of Mr. Augustine’s car rental and the purchase of his uniform in order to work as a ‘gold driver’ for Data Cars Limited was not attributable to any deduction made by the taxi firm when making a NMW calculation. This decision was made on the tribunal’s view that both of these expenses were optional and not a requirement of his employment, and therefore not to be considered for the purposes of whether the claimant received NMW. Mr. Augustine appealed this decision.

At a hearing in July 2021, the Employment Appeal Tribunal (EAT) overturned the Employment Tribunal’s earlier decision, asserting that both payments were deductible for the purposes of calculating whether the claimant received the NMW. The EAT placed high significance on the test of whether the expenditure incurred is in connection with the employment. The EAT submitted that the fact the claimant could have alleviated these costs by the use of his own vehicle and not purchasing a uniform was irrelevant to the application of this test; the question was whether the worker’s expenditure was in connection with the employment. The EAT concluded that the Tribunal did not apply this test, allowing Mr. Augustine’s appeal.

The decision in Augustine v Data Cars reiterates that payments deductible toward NMW calculations do not have to be a necessary requirement of employment. Employers should be made aware of the complexities and pitfalls surrounding wage deductions and the importance of precisely making NMW calculations. Employers who fall short of paying NMW as result of inaccurate calculations will run the risk of facing wider implications such as legal proceedings and being named on the National Minimum Wage Naming Scheme.

For more information please contact David or Niamh in our Employment Team 

In a unanimous judgment handed down in Lloyd v Google [2021] UKSC 50 on 10^th November 2021, the Supreme Court rejected a high-profile compensation claim against Google for the loss of control of personal data. The case concerned Google’s placing of advertising tracking cookies on iPhones using Apple’s ‘Safari’ browser in England and Wales between August 2011 and February 2012. The claim was brought by Mr Richard Lloyd who sought to bring the claim on behalf of several million individuals who he alleges were affected by the loss of personal data.

In its judgment, the Supreme Court rejected the concept that data subjects affected by a non-trivial data breach should be automatically entitled to an award of compensation for the mere “loss of control” of their personal data. The Supreme Court overturned the previous Court of Appeal ruling finding that to have a successful claim for damages for the unlawful processing of data under the Data Protection Act 1998 evidence of proof of damage is required. This proof can either be in the form of tangible financial loss or mental distress suffered as a result of the loss of control of personal data. Such damage must be distinct from, and caused by, the unlawful processing.

The judgment also shed light on how the court would determine the quantum of any damages awarded in a successful case. In deciding damages, the court would be required to consider the extent of the unlawful processing in the individual case based on the relevant time period and the quantity and nature of the data processed. Without evidence as to individual circumstances, it would be impossible to conclude the damage was more than trivial, and therefore there would be no right to compensation. The attempt in this case to bring an action for compensation on behalf of all those whose data was processed, without reliance on any individual circumstances of class members, was therefore without merit.

A point to note is that this case was brought under the Data Protection Act 1998 (the relevant legislation at the time) rather than the UK GDPR which superseded it. However, as the language of both sets of legislation are similar, there is no significant scope for distinguishing any new claims brought under the GDPR from the precedent now set by Lloyd v Google. This is therefore a welcomed development for data controllers of all sizes in the UK.

Should you require advice or assistance in relation to data protection issues please do not hesitate to contact Niamh McMonagle.

It was a year when the healing power of sport was once again in evidence. As footballers, hurlers and camogs battled for Ulster and All-Ireland glory, stories were written, stars created and memories made.

Teams and individuals stepped up when tested, like the Tyrone team which was floored by COVID-19, who picked themselves up, stormed the Kingdom and swept aside the best of the west to land an unlikely All-Ireland title.

The 2021 Gaelic Games season offered hope and now it is time to reward those players from all codes who have provided so much joy and entertainment throughout the year. The Irish News Ulster All-stars, supported by Millar McCall Wylie, PKF-FPM, Spar and O’Neills Sportswear, acknowledge excellence across Gaelic football, hurling and camogie and The Irish News readers now have the chance to name their best 15 in each code.

Over the coming days, The Irish News Reporters and Correspondents will help readers select their teams by providing reminders of some of the outstanding performances of the year in football, hurling and camogie.

The Irish News sports editor Paul McConville said:

“Last year was a first for the Irish New Ulster All-stars as we named teams for football, hurling and camogie and I am delighted that readers will again get to chance to select the most deserving men and women to fill those teams this year.

“In highlighting the top performers across all four codes, we celebrate the role sport has had to play in bringing us back to something close to normal. Our readers love to follow every twist and turn of the Gaelic Games and I have no doubt we will see a great response to this year’s Allstar initiative.”

Also speaking about the awards, Annette Small, Group Marketing and Communications Manager said:

“The Irish News Ulster All-Stars have grown into one of the most prestigious fixtures on the Irish sporting calendar. This year we saw fantastic performances from players across all four codes, allowing us to enjoy an outstanding championship season despite a very challenging year. I would like to take this opportunity to thank our sponsors O’Neills Sportswear, Spar, PKF-FPM and Millar McCall Wylie for their support.”

Voting has now opened. VOTE for YOUR Football, Camogie, and Hurling All-Stars by post or online at www.irishnews.com/allstars Voters will be entered into a draw for a 2021 All-Star jersey and an O’Neill’s gift card to the value of £100. There will also be four runner-up prizes of an Irish News Ulster All-Star jersey.

People across East Belfast have shown tremendous heart, resilience, resourcefulness and tenacity in what has been one of the most challenging times in our history and, as we navigate our way out of the pandemic, the Eastside Awards in association with George Best Belfast City Airport is returning to celebrate those who have shown courage, leadership and gone the extra mile in the past year and here at Millar McCall Wylie we are thrilled to be involved yet again in this excellent event.

This year we will be sponsoring the Eastside Award for Excellence in Health and Wellbeing 

Launching the sixth Eastside Awards, Chair of the organising committee and Chief Executive of East Belfast Enterprise, Jonathan McAlpin, said: “The Eastside Awards were established to celebrate the achievements of our young people, those who are contributing to the economic impact of the area, inspirational residents who volunteer their time to helping others and those who entertain or who are committed to our next generation.

“In the past year so many of our people have gone above and beyond to keep their neighbours safe, fledgling businesses have been able to trade due to the support from the local community and some organisations’ owners have worked tirelessly to keep their staff in jobs, all the while keeping the heart of East Belfast beating. And that’s why I believe that now, more than ever before, we should recognise those people with an Eastside Award. I’m looking forward to a record breaking number of entries this year!”

Entries opened here on 13th October 2021

East Belfast TV presenter Tara Mills will host the awards at an evening of celebration on Friday 25 February 2022 in Hastings Stormont Hotel.

Pictured at the launch is one of our own East Belfast boys Ashley Black

We are delighted to announce that we will once again be sponsoring one of Ulster Hockey’s most prestigious competitions, the Kirk Cup, as it returns to annual sports fixtures after the pandemic.

The Kirk Cup is the oldest hockey tournament in Ulster and the oldest regional hockey trophy in Ireland.  Although the format of the competition has changed down through the years, the Kirk Cup has been competed for since the 1897-98 season.  The cup is named after its donor, Mr John Kirk, J.P, who was a member of Antrim Hockey Club.  Since its beginning until last season play has only been interrupted by two World Wars and extreme weather!

This is the second year the firm has supported Ulster Hockey, as part of our commitment to supporting sports from grass roots to elite level.

Christopher McCandless  remarked: “We are thrilled to once again be supporting the Kirk Cup.  We recognise the social, economic and cultural value of sport and the huge commitment it takes to be involved, whether that is playing, coaching or working at an administrative level. From junior through to professional sports, we support a number of teams and organisations in Northern Ireland – this partnership with Ulster Hockey is one we’re particularly proud of and look forward to seeing great hockey take place this Boxing Day.”

Marc Scott from Ulster Hockey commented: ““Ulster Hockey is delighted to see the return of competitive hockey following the disruption caused by the pandemic.  This year marks 125 years of competitive hockey in Ulster with the 2022 season marking the 125^th Anniversary of the Kirk Cup.

Absence has made the heart grow fonder and it is with great excitement that the 2021/22 season will see the tournament return, with the final taking place in its customary Boxing Day slot.  Ulster Hockey is delighted to partner with leading Northern Ireland Commercial and Private Client law firm Millar McCall Wylie as official sponsor for this important event”.

Child Abduction is when a child is removed from one country (where they are habitually resident) and is retained in another without the permission of all parties who have parental responsibility or without the permission of the Court.

One of the main ways in which the parent or guardian can seek the return of an abducted child is under the provisions of the Hague Convention 1980, which Northern Ireland is a party to. The main provisions of the Hague Convention are incorporated into UK domestic law through the Child Abduction and Custody Act 1985.

There are 89 countries which are signatory to the Hague Convention. Some examples include:

• United States of America (USA)
• Poland
• China
• India
• France
• Romania

The Hague Convention provides that the parent or guardian from whom the child has been removed may apply to a Court in the country where the child is being held for a Return Order (that is, for an Order that the child be returned to the country where the child had been taken from).

For countries which are not signatory to the Hague Convention, the High Court in Northern Ireland may prevent the removal of a child from Northern Ireland by making the child a ward of the Court upon the application of a parent to the Court.

It is also important to note that a child must be under the age of 16 for the Hague Convention to apply.

Procedure:-

Each country has a Central Authority that is the administrative centre, which deals with all applications under the Hague Convention. These cases are categorised as either incoming or outgoing.

An Incoming Case is where a child is abducted from a Convention Country into Northern Ireland. For incoming cases, a parent/guardian should contact us at the outset and we will assist them in contacting the Central Authority of the country in which they are living. That Central Authority may forward the application to the Authority in Northern Ireland, or if a parent prefers they may apply directly to the Central Authority of Northern Ireland. The Central Authority assesses the application and, provided it meets the requirements, we are appointed to make an application to the Court on behalf of the parent.

An Outgoing Case is where a child is abducted from Northern Ireland to another Convention Country. For outgoing cases, a parent should contact us at the earliest possible opportunity. We will assist them in contacting the Central Authority in Northern Ireland to commence an application for return.

If your child has been abducted and his or her whereabouts are unknown, you can make an application to the Court for a “Seek and Find” Order or, for an Order seeking disclosure of information which might assist you in finding your child under the Family Law Act 1986.

Of course for those parents who find themselves in a situation whereby they have wrongly been accused of abducting their Child for example, where the other parent has in fact given permission or where the parent has acquiesced over time we have expertise in defending theses type of Hague Convention applications. Upon receipt of knowledge of an application, we would advise those parents to contact us at the earliest opportunity.

One is very mindful of the stress and upset to parent and child in these cases, as are the Courts, and these cases are therefore given priority and heard urgently (a case is usually brought before the Court within 6 weeks of the application).

Legal Aid funding is available for any parent seeking the return of their child to Northern Ireland, regardless of your financial circumstances.  However, a parent who has removed their child from where they are habitually resident will not automatically qualify and must apply for it in the usual way.

It is important to note that any abduction of a child is a criminal matter and you should contact the Police at the earliest opportunity.

Millar McCall Wylie are members of Reunite International, a panel of advisory solicitors who deal with Child abduction and Hague Convention matters. If you require advice on any matter outlined in this article please contact Clare Lenaghan or Louise McNally in our Family and Matrimonial Team on 02890 200050.

Energy Acquisition Group Ltd (EAG) has acquired Greenan Generation Limited (GGL) and its 0.5MWe Anaerobic Digestion plant based in Eglinton, County Londonderry~Derry.

This marks EAG’s first acquisition as part of its recently formed joint venture with Scirocco Energy plc last month. The joint venture will be focused on securing investments in the European sustainable energy and circular economy markets.

Millar McCall Wylie acted for EAG in advising and managing all legal aspects of the acquisition.

Chris Kerr, Managing Director, EAG said: “Acquiring Greenan Generation Limited is an extremely positive development and represents a robust asset within our portfolio.

“The partnership of EAG and Scirocco Energy is well positioned to take advantage of the growing UK biogas market and this initial acquisition can serve as the template for other opportunities. Millar McCall Wylie’s expertise and pragmatic approach were instrumental in ensuring the deal completed smoothly.”

Scott Kennedy, Director, led our team advising EAG on the acquisition: “We are very proud to act for EAG in this significant transaction, the first as part of their joint venture with Scirocco Energy. This will undoubtedly be one of many similar long-term investments that will shape the growth of the company within the renewables sector.”

Three Relay teams from MMW took part in the 2021 Belfast City Marathon with their normal sense of dedication and of course rivalry.

All survived to make it into work on Monday morning and well done to all who took part

A massive word of thanks to all our staff and friends who took part in this brilliant initiative during September as they committed to 30 minutes exercise everyday for 30 days.

Anyone can contribute to this very worthwhile cause and please follow this link https://fundraise.cancerresearchuk.org/unite/business-beats-cancer-belfast for more information on how to donate of join.

at MMW we raised £2,000 which is great news

Well done everyone and keep it up

The Coronavirus Job Retention Scheme (‘CJRS’) closed on 30 September 2021, 18 months since it was first launched. Introduced in March 2020 as a reactionary measure to prevent mass redundancies in the face of the COVID-19 crisis, the closure of the ‘furlough’ scheme demonstrates the long awaited reopening of the economy. Although a return to ‘business as usual’ for most industries is to be welcome, the closure of the CJRS scheme is likely to result in employers considering difficult decisions relating to their workforce. Employers may wish to avail of temporary lay-off, short-time working and redundancy to manage their staffing levels. If you find yourself faced with such questions, here is an overview.

Lay- offs and Short -Time Working

A lay – off occurs when there is not enough work for an employee to perform and they subsequently find themselves off from work for at least 1 working day. Short – time working is where an employee works reduced hours and receives less than half a week’s normal pay. During lay- off or short- time working, employees are entitled to a guaranteed payment of £30 per day for 5 days within any 3 month period (not exceeding £150).  Although employers do not automatically have the right to lay -off employees or put them on short- time working, these working term arrangements can be incorporated into an employee’s contract in various ways:

• Being expressly written into their contract
• Being implied through custom or practice; or
• Agreed by the employer and employee concerned

What next?

If an employee finds that they have been laid-off / put on short- time working for 4 consecutive weeks, or for any 6 weeks within a 13 week period, the employee can give their employer written notice that they intend to claim a redundancy payment. Following this, employers have 7 days to either accept the redundancy claim or provide a written counter – notice.

What is a counter-notice?

A counter-notice signifies that work is expected to be available again soon. This work must start within 4 weeks and last for at least 13 weeks. If circumstances change following a counter- notice, it must be withdrawn in writing. If an employer does not issue a counter-notice within 7 days to the employee, it is assumed that the redundancy claim has been accepted.

Redundancy

Redundancy arises when an employee is dismissed due to:

• Full business closure;
• Workplace closure (closure of one of several sites or relocation to a new site); or
• Diminished requirements of a particular kind of work

How to conduct the redundancy process

Where employers seek to make 20 or more employees redundant they should follow Collective Redundancy rules and should seek advice on how to follow the correct process. However, the steps below should be followed when making less than 20 employees redundant.

When commencing a redundancy process, an employer should firstly hold a group meeting with all employees who are at risk of redundancy. During this meeting, an employer should explain the reasons for any potential redundancies, outlining the number of possible jobs at risk. Whilst informing employees that redundancies are only a possibility at this stage, employers must outline any avoidance methods being explored. Furthermore, employers should ask employees for their suggestions as to how to avoid redundancies and also request volunteers for redundancy. Employers should remain transparent with their employees regarding selection pools and the criteria being used to determine who may be selected for redundancy. Such information should be reaffirmed in writing to the employees and ‘at risk’ letters must be sent to employees being considered for redundancy.

How to ensure a fair redundancy process

To ensure a fair redundancy, an appropriate pool of employees must be identified for redundancy selection. There are no fixed rules determining how the pool should be defined, but the employer’s choice of pool must be within the range of reasonable responses. When selecting a pool of employees for redundancy, employers must consider:

• There is no legal requirement that a pool should be limited to employees doing similar work
• Alternative vacancies on a group wide basis
• The number of employees at risk
• The time frame for the process
• If an employee unreasonably rejects an offer of suitable alternative employment they will forfeit their right to a redundancy payment
• Each employee at risk of redundancy should be scored using a clear selection criteria and scoring guidelines.

Next steps

Employers should conduct individual consultations with the employees facing redundancy, and remind employees of their right to be accompanied by a trade union representative or colleague. A notice of redundancy must be subsequently issued and an employee will have the right to appeal this decision. If an appeal hearing takes place, the employee sustains the right to be accompanied.

Should you require advice or assistance in relation to any of the above please get in touch with Jan Cunningham, David Mitchell or Niamh McMonagle in our Employment Team.

We were once again delighted to sponsor the U10’s Championship at the 2021 Balmoral Show.

Each year we witness huge talent from our youngest competitors and as always we really enjoyed the day out at the show.

Huge congratulations to this year winner Cliodhna McEvoy on Tynnan Tuttle Pip , pictured with our own Caroline Prunty receiving her prize.

Well done to all

The fallout from the allocation or in some cases the non-allocation of post primary school places remains headline news.

Recent figures indicate that the Education Authority received approximately 800 appeals, with more than 120 of these appeals being upheld. This has meant that the Education Authority has then had to allocate additional places for those children whose appeals were successful.

Louise McNally from our Family and Matrimonial Team successfully assisted a family whose appeal was upheld. The Child in this case was not allocated a place at his first preference grammar school. Louise advised the Child’s parents on the merits of an appeal and, the grounds on which they could challenge the School’s decision. This appeal was listed for hearing in late August, and heard by an Independent Tribunal some 4 days before the school term commenced. On appeal, the Tribunal held that the particular School applied its admissions criteria but did not apply it correctly.

This appeal centred upon a random alphabetical tiebreaker applied given the school was oversubscribed. The tiebreaker was on the basis of the initial letter of the surname identified on a Child’s Transfer Application. The order was determined by random selection and witnessed by members of the Admissions Committee for that particular school. The difficulty in this case was that the full admissions criteria to include the order of the randomised alphabetical tiebreaker was not published until the day after the Education Authority portal for Year 8 admissions closed for 2021/2022 intake.

The Tribunal in this case held that “failure to publish the tie-breaker in entirety prevented the parents from making a fully informed choice”. The appeal was successful.

Our clients and their son were delighted with the outcome, and the Child has now been able to take up a well-deserved place in his first preference grammar school. Our client added:

“MMW Legal provided us with much needed support through our Post Primary Appeal process to DE/EA. Their compassion and expertise within this area was undeniable and contributed to a successful outcome in what was a truly exceptional year.”

If you or your family require advice in relation to any matter relating to your child’s education then please contact Louise McNally in our Family and Matrimonial Team on 02890 200050.

Following the death of a person, the administration of their estate and finances can be a difficult time for all family members involved. It is of utmost importance that the wishes of the deceased should be upheld where possible.

However, there are occasions where family members suspect that the will does not mirror the true intentions of the deceased and in those instances, there are avenues available for contesting an executed will.

Contentious probate refers to any dispute that arises in relation to the administration of an individual’s estate when they die. This article will explore the grounds for contesting a will.

There are various ways to challenge the legitimacy of a will and these include:

• Lack of testamentary capacity
• Lack of knowledge and approval
• Undue influence or coercion
• Forgery and fraud
• Fraudulent Calumny
• Wills and Administration Proceedings (NI) Order 1994

Lack of Testamentary Capacity

The law states that at the time of creating their will, the person must be of ‘sound mind, memory and understanding’.  One of the leading authorities in this area is the case of Banks v Goodfellow [1870]. The test in this case states that testator has testamentary capacity where they:

1. Understand the nature of the will and its effect;
2. Have some understanding of the extent of their property;
3. Are aware of the persons for whom they would usually be expected to provide for;
4. And are free from any delusion or disorder of the mind that would affect their ability to dispose a will.

The Golden Rule for testamentary capacity was set out in the case of Re Simpson [1977] and states that, “The making of a will by an aged or seriously ill testator ought to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings.’

If the testator lacks testamentary capacity at the time that the will is executed, the will is invalid.

Lack of Knowledge and Approval

For a will to be deemed valid, the testator must have understood and approved the contents of it. It is presumed that a will has been executed correctly and that the person had the necessary capacity; however, the Court may require evidence if there are any disputes relating to the testators knowledge. The Court will seek evidence to prove knowledge in the following circumstances:

• Where the testator was blind or illiterate
• The testator could not speak or write, or was paralysed
• The will was signed by an individual other than the testator at his or her instruction.

If a will is being challenged on the grounds of validity, those who believe that the will is binding have to prove how it is valid

Undue Influence or Coercion

Undue influence occurs where an individual interferes with the creation of the will in order to affect the distribution of the testator’s estate for their own benefit. Undue influence can include acting in a manner that may amount to physical violence or verbal bullying. However, it can be held that undue influence also occurs where the wishes of the testator have been over powered.

Forgery and Fraud

In the circumstances where the entire will or the signature of the Testator is forged, or the contents within the will are fraudulent, then the will is deemed invalid. If any versions of the will have been destroyed by beneficiaries for their own personal gain, the will is also determined as being invalid.

If forgery or fraud occurs at any stage during the will making process, then the will is regarded as not been executed properly and therefore the estate has not been distributed in accordance with the Testator’s wishes.

Fraudulent Calumny

Fraudulent calumny is whereby one beneficiary of a will makes a false representation about another potential beneficiary to ‘poison’ the mind of the testator. This then results in the testator either leaving more of their estate to the beneficiary who has made the false representations or the victim of the false representations being disinherited.

If fraudulent calumny is established the will is liable to be set aside.  Of note however, Fraudulent Calumny is very difficult to prove and has to date not been proven in a Northern Irish case.

Wills and Administration Proceedings (NI) Order 1994

A valid will must comply with Section 5 of the Wills and Administration Proceedings (NI) Order 1994. Therefore, it must be satisfied that:

• It is signed by the testator or by some other person in his presence and by his direction.
• It appears from the will or is shown that the testator intended by his signature to give effect to the will.
• The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time
• Each witness, in the presence of the testator, either—(i) attests the testator’s signature or the testator’s acknowledgment of his signature and signs the will; or(ii) acknowledges his signature.

Contesting a Will after Probate

If you think that you may have grounds for contesting a will, it is important to act as quickly possible. If you wish to dispute a will, it is essential as a first step to enter a caveat where validity is challenged. If a caveat is lodged, this prevents the issue of a Grant of Probate for a period of six months.

Millar McCall Wylie solicitors have acted in many cases where the validity of a will has been disputed. If you find yourself in a position to contest the validity of a will then please contact our Head of Litigation, Caroline Prunty on 028 90200050 or email caroline.prunty@mmwlegal.com.

The Finance Minister in Northern Ireland has this week extended emergency protection for business tenants having difficulty paying rent on commercial leases as a result of the pandemic.

The special provision in section 83 of the Coronavirus Act 2020 is being extended again, meaning that Northern Ireland businesses which have fallen into rent arears will be protected from eviction until 25 March 2022.  This announcement from the Department of Finance comes just weeks before the previous deadline of 30^th September 2021 and has brought Northern Ireland back in line with England and Wales.

In addition, the Bankruptcy & Companies Master issued updated Covid-19 guidance last week, confirming that creditors’ winding up and bankruptcy petitions, which were adjourned between March and June 2020 are now being relisted for hearing from 20^th September 2021.

This appears to be a small step towards normal pre-pandemic business in the Bankruptcy Court in Northern Ireland.  However, ongoing restrictions in the presentation of new creditors’ bankruptcy and winding up petitions remain the same with the guidance stating that this is “unlikely to be removed in the short term”.

Should you require any advice in relation to the above, please do not hesitate to contact Caroline Prunty or Ashley Black.

The Coronavirus Job Retention Scheme (‘CJRS’) was introduced in March 2020 as a reactionary measure to prevent mass redundancies in the face of the COVID-19 crisis. There is no disputing it has played a significant role in protecting both workers and employers; having paid out in excess of £60bn to support the livelihoods of those adversely affected by COVID-19. The CJRS has been extended several times but is now due to close on 30 September 2021. Once closed it is highly likely that HMRC will ramp up its investigations into both erroneous and fraudulent claims. HMRC report that 10% of all furlough monies paid-out have been incorrectly paid and will, through enforcement action, seek to recover such monies from employers found to have breached the entitlement rules either mistakenly or fraudulently.

What is furlough fraud?

When the CJRS was first announced employers and legal representatives alike were faced with complex eligibility rules to determine how the scheme applied in various circumstances. In such instances, it is anticipated that HMRC will be lenient when employers have made genuine mistakes.

The most common errors made by employers under the CJRS include where the employer has:

• Under claimed National Insurance Contributions for employees with topped up wages;
• Excluded relevant pay elements in calculating correct percentage of furlough wages;
• Incorrectly calculated the pro-rata equivalent of the £2,500 cap for part-time employees;
• Incorrectly calculated reference pay for an employee
• Failed to top up furlough pay for employees on annual leave
• Incorrectly calculated reference pay for employees with varying wages including those on zero hour contracts.

Claims which are fraudulent and will be dealt with much more severely by HMRC, include where employers have:

• made claims for employees who have left their employment; and/or
• placed employees on full or flexi furlough but required them to work full-time.

HMRC investigations

The Finance Act 2020 enables HMRC to scrutinise an employer’s eligibility, recoup incorrectly paid monies, in addition to statutory interest, and penalties. Employers may also be fined and/or prosecuted.

HMRC has been actively encouraging reporting of fraudulent claimants via its whistle-blower helpline, which facilitates anonymous reports of wrongdoing by employers, to include where employers have required their staff to continue working whilst furloughed. Employers should be reminded that whistle-blowers are protected by employment law from detrimental treatment and unfair dismissal. Employers should be reminded that they could find themselves in greater financial difficulty should it seek vengeance against a whistleblowing employee.

HMRC has already began the process of assessment and identified sectors or employers who they consider to be higher risk. Many ‘nudge letters’ have already been issued by HMRC to employers to warn them to rectify any mistakes before a more official investigation is launched and facilitate voluntary disclosures of overpayments. Once HMRC commence a formal investigation it has wide-reaching statutory powers to include conducting PACE interviews with employers and requesting full disclosure of any documentation required to assist their investigation  (to include employee emails which may show whether they were working whilst supposedly furloughed).

What are the consequences for employers?

Generally HMRC will consider whether an employer has acted innocently, carelessly, deliberately or fraudulently in making a determination on what sanctions to impose. In making its decision HMRC will take into consideration;

• the underlying behaviour of the employer (i.e. whether it was deliberate and/or concealed);
• the lost revenue; and
• whether the disclosure was unprompted or prompted.

HMRC fines operate against a sliding scale, taking into account the nature of the employers actions, with a maximum fine of 100% of the wrongly claimed payment.

In addition to the financial consequences for employers there is the potential for reputational damage. ‘Deliberate Defrauders’ risk having their details published on the HMRC website and in the media.

What should employers do?

HMRC provides a dedicated disclosure facility for overpayments to enable employers to self-report and rectify in consideration of the lesser penalties applied if an employer makes the disclosure prior to an investigation by HMRC. Employers should seek advice before making any disclosure and identify whether it has any cause for concerns. Given the complexity of CJRS claims employers should consider getting their claims reviewed in detail.

Employers who disagree with a decision made by HMRC regarding tax may dispute their liability by initially requesting an independent review by an officer not previously involved in the case. If the matter remains unresolved, the employer can lodge an appeal to the Tax (First Tier) Tribunal or consider HMRC’s ‘Alternative Dispute Resolution’ process.

Conclusion

Despite the essential financial support provided by the CJRS since March 2020, it is quite clear that HMRC will not tolerate those who have abused the scheme and will continue to ramp up its enforcement action to recoup monies wrongfully claimed. Particularly once the scheme ends on 30 September 2021. Employers should be encouraged to seek legal advice on the claims they have made over the last year to identify whether they have been compliant with the eligibility rules. If necessary employers should make the relevant disclosures to HMRC to mitigate their risk.

We realise that many employers will be working closely with their Accountants to provide computational support. At Millar McCall Wylie we strongly value our relationships with other professionals and are very keen to work in partnership with your Accountants to achieve holistic resolutions with HMRC through advocacy and legal advice to those facing HMRC challenge.

Please contact David Mitchell or Christopher McCandless in our Tax Dispute and Employment Team

An acquisition deal has been completed to bring the Fairhill Shopping Centre under the ownership of Ballymena based property development and investment company Magell Limited.

Purchased for an undisclosed sum in partnership with the Dublin-based Melcorpo Group, Fairhill has returned to local ownership after a period of ownership by German investment group Patrizia AG.

Fairhill Shopping Centre extends to circa 280,000 sq ft with notable tenants including Marks & Spencer, Next, JD Sports, H&M, River Island, Starbucks, Superdry, Toy Town and Burger King.

Speaking about the acquisition, Ryan Walker of Magell Limited said: “Fairhill Shopping Centre is an exciting addition to our portfolio and one which represents fantastic opportunity, both for our company and for the town of Ballymena. We are proud to be bringing the centre back under local ownership and intend to cement a hands on, active management style that best supports the future of the centre and the tenants within it.”

Our Real Estate team , led by Director Simon Fleming ,  acted for Magell and its investment partner in the purchase.

Simon commented as follows “We were delighted to play a role in the acquisition of Fairhill Shopping Centre on behalf of the purchaser . This family owned business will undoubtedly go on to maximise the potential of the centre and lead it into a fresh new chapter.”

Belfast based TDK Commercial Property Consultants advised on the acquisition and have been appointed as letting and managing agents. Mark Thallon, Partner in TDK commented “Fairhill Shopping Centre offers a great opportunity and we look forward to working with the new owners to realise the full potential of the centre.”

Simon can be contacted on 028 90 200050

Cohabiting families are the fasted growing type of family living in the UK, having more than doubled from 1.5 million families in 1996 to 3.3 million families in 2017. Some people are choosing cohabitation over marriage due to circumstantial reasons such as being non-religious and the high cost of weddings. However, this increase in cohabitation may also be attributable to the ‘common-law marriage myth.’ This so called ‘myth’ is that after a certain amount of time cohabiting, a couple would be entitled to the same rights as a legally married couple. However, this is not the case as cohabitees don’t have nearly as many rights as married couples or civil partners.

Cohabitees are particularly disadvantaged when it comes to protection upon separation and death. Whilst married couples are afforded rights under the Matrimonial Causes (Northern Ireland) Order 1978 (and other legislation) , no similar legislation exists for unmarried cohabitees and therefore, upon relationship breakdown, they largely have to rely on the complex and uncertain principles of property and trust law as a way of resolving property disputes .

One of the ways in which cohabitees can protect themselves financially is through entering into a Cohabitation Agreement.

A Cohabitation Agreement is a written Agreement, executed by both Parties, usually when they are contemplating living together or have made the decision to do so.  A Cohabitation Agreement can set out how property, other assets and finances are to be dealt with in the event of relationship breakdown (and indeed during the course of the relationship). Such an Agreement can avoid acrimony and difficulty upon separation as both Parties will know where they stand with each other. In the absence of a Cohabitation Agreement, cohabitees are more likely to run the risk of being left without any financial protection upon relationship breakdown.

Whilst it is important to note that Cohabitation Agreements are not legally binding, they provide evidence of the intention of the parties and increased weight is being given to them in Court proceedings. A Cohabitation Agreement can therefore be an important document for cohabitees.

If a married person or civil partner dies intestate (without a will), leaving assets, the spouse is automatically entitled to an inheritance under the complex laws of intestacy. In contrast, a cohabitee is not automatically entitled to an interest in the estate of their partner and instead must apply under the Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979 which requires them to have lived together for at least two years prior to the death. Therefore, by creating a will, a cohabitee ensures the fair disposal of their assets upon death to their partner.

It is important that proper legal advice is sought to assist with the drafting of Cohabitation Agreements and Wills to ensure that they are representative of the parties’ wishes.

If you require legal advice on either of these matters please contact our Head of Matrimonial Clare Lenaghan and our Head of Private Client Conor Wylie on 02890200050.

Ms Mhindurwa was employed as a care assistant by the Respondent, Lovingangels Care Limited, providing live-in care to a vulnerable person from October 2018 to February 2020. In February 2020, the vulnerable person was admitted to hospital and then moved into a care home meaning Ms Mhindurwa’s caring role was no longer required. As a result, in May 2020, Ms Mhindurwa requested to be furloughed pursuant to the Coronavirus Job Retention Scheme (CJRS) in light of the ongoing Covid-19 pandemic. Ms Mhindurwa’s employer refused her furlough request on the basis that ‘there was no work for her.’

In May 2020 the employer informed Ms Mhindurwa that she was at risk of redundancy as she could not be offered any further live-in care work as a result of COVID-19 restrictions. The employer then met with the Claimant to inform her that the only work available was in domiciliary care. Ms Mhindurwa rejected this offer and was given notice of dismissal in July 2020 and her redundancy pay. Ms Mhindurwa appealed the employer’s decision to dismiss, but her appeal was dismissed by the Appeal Manager. The Claimant then initiated legal proceedings in the Employment Tribunal claiming that her employer should have furloughed her rather than making her role redundant.

The Tribunal accepted that Ms Mhindurwa was dismissed by reason of redundancy, one of the five potentially fair reasons for dismissal, but ruled that her dismissal was unfair based on the following two reasons.

The first reason related to the availability of the CJRS, created in March 2020 to provide financial assistance to employers whose staff were unable to work as a result of the Covid-19 lockdown restrictions. In considering this, the Judge decided that “In July 2020, a reasonable employer would have given consideration to whether the claimant should be furloughed to avoid being dismissed on grounds of redundancy.” The Judge considered that as the employer could only provide domiciliary work, rather than live-in care work, this would be unsuitable for the Claimant given the significant distance she would be required to travel each day to work. The Judge considered that “this was the type of situation that the furlough scheme envisaged.”  The Judge held that although the Respondent had no work for the Claimant at the time of the dismissal, it had no way of knowing if that was going to change, and did not consider whether the Claimant should be furloughed for a time to see if any other work became available. As a result, the Judge found that the Respondent could not provide a reasonable justification as to why the furlough scheme was not considered as an alternative to dismissal.

The second reason related to the appeal held regarding the Claimant’s dismissal. The Judge found that the appeal simply rubber-stamped the original decision as the Appeal Manager failed to make enquiries to ascertain whether Ms Mhindurwa’s complaints were correct but simply assumed that the employer had made the correct decision.

Interestingly, this marks the first Tribunal decision regarding the furlough scheme, redundancy and potential unfair dismissal claims. Whilst this decision is not binding on any other Tribunal, it does indicate that Tribunals may expect employers to consider furloughing ‘at risk’ staff as part of their duty to consider alternatives to redundancy. It further confirms the importance of ensuring a fair appeals process is carried out, as an Employment Tribunal will consider the fairness of the entire disciplinary procedure to determine whether the dismissal was unfair.

Should you require advice or assistance in relation to any of the above please do get in touch with Jan Cunningham or David Mitchell in our Employment Team.

Given the year it was, it comes as no surprise that development activity in Belfast City Centre slowed significantly in 2020. In fact, there were seven new start developments compared to 11 in 2019 (source: Belfast Crane Survey).

There are several factors stemming from the pandemic that have already, and will likely continue to, impact on city centre development – most notably the working from home effect.

Many city centre employers have stated that after the pandemic, they don’t expect their employees to return to a city centre base full-time. This will change their space requirements and ultimately the types of Belfast city centre schemes proposed by developers going forward.

In recent years, we have been witnessing an increase in city centre living, with more than half the people living in the city centre working in high-skilled professional occupations. This subsequently created a market for gyms, restaurants, bars and shops, which made city centre living even more appealing.

There are now however a number of challenges facing owners of property in the city centre. Covid-19 forced many to reconsider their living space, with increased importance placed on gardens and proximity to outdoor areas. And with the uptake in working remotely, property owners desire larger, more comfortable homes. However larger developments will mean fewer homes, lower density, less efficiency and increased costs per unit – perhaps making city centre residential schemes unviable.

Several proposed developments, whilst currently in the pre-construction phase, provide grounds for future optimism however.

Developers are about to break ground on a new 175-bedroom aparthotel on Queen Street, Belfast, the first of its kind in Northern Ireland. The building has been pre-let to a growing national hotel operator – to whom Millar McCall Wylie was delighted to provide both property and construction legal advice.

With relaxed government guidelines and a successful vaccination programme rolling out across Northern Ireland, city centre development can and should be kick started in the short and medium term. How the shape of Belfast city centre changes in the long term however, remains to be seen.

Please contact our Real Estate team if you need to discuss any legal issues arising from developments or investments

Following the easing of national lockdown restrictions, employers will be encouraging employees to return to the office after an extended period of working from home (‘WFH’). For employees this will mean a return to the wearing of professional work attire and adhering to their employers’ dress code policies.

Whilst dress code policies are implemented by the majority of employers to ensure a professional image is maintained in the workplace and, in certain circumstances, to comply with health and safety obligations, they can be controversial. Employers must ensure they are suitably and appropriately drafted to prevent discrimination claims. For instance, for religious or political reasons, many employees want or feel obliged to wear certain items, such as turbans, hijabs, crosses or bangles, however dress code policies often prohibit the wearing of such political or religious items. Whilst this is generally to encourage a more inclusive work environment, in practice this could lead to aggrieved employees raising claims on the grounds of religious or political discrimination.

There are two different forms of discrimination in Northern Ireland:

• Direct discrimination which occurs when an individual is treated less favourably than someone else due to their gender, sexual orientation, age, disability, race, religion or political belief. Direct discrimination cannot be justified in any circumstances; and
• Indirect discrimination which is when there is a provision, criteria or practice (PCP) in place which applies to everyone in the same way, but it has a worse effect on some people than others due to their gender, sexual orientation, age, disability, race, religion or political belief. Acts of indirect discrimination may be objectively justifiable which is a defence for applying a policy, rule or practice that would otherwise be unlawful indirect

Employers should therefore consider whether their dress code may be indirectly discriminatory when introducing a dress code policy and if so whether it can be objectively justified.

This issue was recently addressed by the Court of Justice of the European Union (CJEU) in the case of IX v WABE & MH Muller v M. In this case, the Employer, operated child day-care centres and had a policy in place prohibiting employees from displaying, in a manner visible to parents, children or third parties, any signs of political, philosophical or religious beliefs. The Employer enforced its policy against the Claimant who wore a headscarf for religious reasons, and also against another employee who displayed a cross. The CJEU ruled that it was not direct discrimination (for which an employer has no defence)  for an employer to impose a policy requiring neutral dress in the workplace, where the policy is applied in a general and unconditional manner. The judgment further states that whilst the employer’s policy may have caused an inconvenience to certain workers who observe religion-based clothing rules, the Claimant did not suffer less favourable treatment that was based on religion or belief as compared to other workers. Therefore the Employer’s policy did not constitute as an act of direct discrimination.

The CJEU also indicated that such policies could be objectively justified in the context of indirect discrimination if it could be proved that the policy meets the genuine need of the employer.  However, Employers must ensure that such policies are general in prohibiting employees from wearing anything which manifests a religious or political belief and should not prohibit any specific manifestations of a religion or belief, as this would likely constitute direct discrimination.

Should you require advice or assistance in relation to any of the above please do get in touch with Jan Cunningham or David Mitchell in our Employment Team.

What is a Compromise Agreement?

Compromise Agreements are legally binding, written agreements between employers and employees which bring the employment relationship to an end in a mutually agreed way. It is recognised by statute and is the only way (other than through an LRA facilitated settlement) an employee can validly “contract out” of their employment rights. Under a Compromise Agreement, an employee agrees to give up any right to pursue potential claims against their former employer, usually in exchange for financial compensation.

Compromise Agreements are useful in many circumstances and they are a specifically useful tool for employers who are faced with the difficult task of restructuring their business. Compromise agreements are commonly used in a redundancy situation where employers want to ensure they part with their employees in an amicable way without having to follow a full redundancy procedure and also in order to protect themselves from any future industrial tribunal claims. A compromise agreement can provide additional protection for employers, including reaffirming post-termination restrictions and duties of confidentiality, while preventing employees from making defamatory comments about the business or its management. Compromise agreements are flexible and terms can be adapted to suit individual business needs.

When can you use Compromise Agreements?

Where there is an existing dispute between an employer and an employee, as long as there is no fraud, undue influence or “unambiguous impropriety” (such as perjury or blackmail), they can enter into discussions on a “without prejudice” basis with a view to terminating the employment relationship. In these circumstances, such pre-termination discussions cannot be used as evidence in any subsequent industrial tribunal proceedings.  If, as a result of the “without prejudice” discussions, an agreement is reached between the parties, the employee will enter into a compromise agreement.

What are the legal requirements for a binding compromise agreement?

In order for the agreement to be legally binding under NI employment legislation, the following conditions need to be satisfied:

(1) The compromise agreement must be in writing,

(2) The agreement must cite which employment claims are being compromised, and

(3) The employee must have received independent legal advice regarding the purpose and effect of the terms of the agreement from a qualified solicitor. It is an established custom and practice that an employer will make a contribution to the legal costs incurred for the employee to seek independent advice.

At Millar McCall Wylie, we recognise that many businesses are being forced to consider re-structuring their business in light of the ongoing Covid-19 pandemic. Therefore, we believe compromise agreements provide a quick and amicable resolution for both parties to resolve matters in difficult circumstances. We are well experienced in drafting Compromise Agreements for employers. We can also advise employees in relation to the terms and conditions of any Compromise Agreements offered to them.

Jan Cunningham or David Mitchell in our Employment Team are available to both employees and employers who require advice and assistance in relation to the above.

There is no doubt that the Covid-19 pandemic has led to major global business interruption with employers and employees adapting to new ways of working and living. It is anticipated that vaccines will play a significant role in helping to drive down infection rates and allow a return to some form of normality. The roll-out of the Covid-19 vaccination programme in Northern Ireland has seen around 1.1 million first doses administered to the adult population to date. As a result of this significant development, many employers are keen to welcome staff back to the office after, in most cases, a long period of working from home (“WFH”). However, understandably, employees and employers alike will have considerable concerns regarding any potential return to the workplace.

From an employer perspective, all employers have a duty of care to their employees as outlined in the Health and Safety at Work (Northern Ireland) Order 1978. However whilst ensuring a safe workplace is provided for their employees is a statutory duty, there is no statutory basis for forcing employers to take any vaccine. In fact, the Public Health Act (Northern Ireland) 1967 expressly provides that individuals should not be compelled to undergo any mandatory medical treatment including vaccination. Whilst in England they are introducing a mandatory vaccination policy for care-home workers, the Health Minister for NI has confirmed that in light of the significant level of uptake for the vaccine amongst care-home workers in NI, this will not be the approach adopted in Northern Ireland. Therefore, if employers insist on imposing mandatory vaccination policies this could give rise to claims of unfair/constructive dismissal and discrimination. Ultimately, it remains a personal choice as to whether or not any individual wishes to take the vaccine.

Employers must be mindful that there is a heightened sense of anxiety amongst individuals in light of the ongoing pandemic and this subject requires careful and sensitive management. A less risky approach would be for employers to consider introducing a Covid-19 vaccination policy which encourages employees to take up the offer of a vaccine against Covid-19, without making it a compulsory requirement. We can tailor a suitable policy to meet your requirements.

Employers may consider vaccination as part of their updated risk assessments and ensure it includes alternative safety measures to receiving the vaccine such as social distancing, hygiene procedures, and ventilation. Employers must also be cautious when storing employee vaccination data as this is sensitive information and due regard must be given to data protection requirements.  Any reason for an employer to record and store this information must be clear and compelling as well as being communicated to employees. Obviously this data should not be shared with third parties.

Should you require advice or assistance in relation to any of the above please do get in touch with Jan Cunningham or David Mitchell in our Employment Team.

The Better Business Act (BBA) movement is growing.

What is the BBA?

The BBA is a B Lab UK initiative which as part of the rising ESG (Environmental, Social and Governance) agenda seeks to change the statutory duty of company directors to promote the success of their company as required under s172 of the Companies Act 2006  to advancing the ‘purpose’ of their company

B Lab UK is a not for profit organisation which creates standards, policies, and tools to help and then certify those businesses who it calls B Corps, which it believes are leading the way in transforming the global economy to benefit all people, communities, and the planet.

How will it achieve this?

The BBA seeks to introduce four main principles into Section 172. These include:

1. Align Interests – putting the interests of wider society and the environment on par alongside the interests of the company’s shareholders. This would equate to a new fiduciary duty being placed on directors within Section 172. Directors would have to factor in a wider range of interests when making decisions including what is best for the environment as well as its customers, as opposed to what was simply in the best interests of the company and its shareholders.
2. Empower – directors would be empowered to consider the interests of all stakeholders in their decisions. This would result in ensuring that companies are not entirely driven by profit and instead by their effect on wider society as a whole.
3. Default Change – Amending this legislation would ensure that all companies would be held to a higher ESG standard as a default. It would no longer be optional to promote the interests of stakeholders as a whole, rather than just shareholders.
4. Reflect in reporting – If BBA legislation is enacted, businesses would be obliged to report on their impact on their workers, customers, communities and the environment as well as their financial performance.

Who is backing BBA?

Over 550 business including major brands such as John Lewis, Iceland and Innocent have already signed up to the Better Business Act coalition and pledged to support the four basic principles of the Better Business Act. Influential business representative body, The Institute of Directors, has also publicly stated support.

How would BBA impact on Business generally?

If the BBA is successfully implemented, each company will have to :

• Establish and define its purpose;
• generate an inclusive and diverse working environment;
• commit to environmental responsibilities; and
• revaluate the company’s supply chain.

Companies will need help to establish and define ‘purpose’ which for many boards used to simply focusing on shareholder returns will be an alien concept. They will need to understand new reporting duties around these and directors must also acknowledge what is expected of them and how they can best achieve the companies ESG goals and targets.

Why back the BBA?

Companies are having to respond to growing consumer demands for companies to act responsibly and purposefully concerning the environment, their corporate governance and within wider society. Events with societal impact such as Covid-19 are only likely to accelerate such demands and it appears these demands are being heard.

With bank lending terms now reported to include ESG targets and that big 4 accountancy corporate finance advisers report that clients seeking funding now routinely check funders’ ESG credentials and vice versa, it is clear that ESG is here to stay.

Major brands and consumer facing businesses are already leading the charge to demonstrate their ESG credentials and seeking B Corp certification is a clear way of doing so.

But is BBA relevant to NI businesses?

Whilst the majority of businesses in Northern Ireland are owner managed SME who may view BBA as something that currently only larger companies need to think about, as always change generally comes or gets pushed down from the top’. It is not difficult to imagine supply chain tenders only being open to BBA adopters and this driving change in those smaller companies who wish to still do business with those adopters.

Similarly, nearly every client we speak to is struggling to recruit staff with the rights skills. A BBA adopting business can help put itself at the front of the queue for talent as they strive to make their organisation a positive work environment and compatible with the aspirations of the next generation.

Independent analysis also highlights evidence of faster increase in turnover, greater recruitment appeal, and drive in performance in companies who have aligned with ESG principles and ever-growing numbers of investors want to diversify their portfolios. Thus, there is an increasing investor community focused on businesses with ESG values and therefore, incorporating these principles into a business’s purpose will likely improve a company’s appeal to investors.

At Millar McCall Wylie our Corporate & Employment teams are keen to engage with business on how they can best reflect purpose via their governance framework and advise on the consequence of proposed changes to company law.

Millar McCall Wylie provided legal advice to Brian and Elizabeth Toal, who founded JB Plant Hire over 35 years ago, in the recently announced sale of the leading Northern Irish plant hire company to Briggs Equipment, an engineering services and asset management specialist.

The Millar McCall Wylie team was led by Damian McParland, Director, assisted by Louise Cavanagh and Hayley Cummings (Corporate), Neil McCreadie and Michael Wilson (Property) and David Mitchell (Employment).

Commercial and specialist tax advice to the Sellers was provided by McAleer Jackson, Chartered Accountants, Omagh, led by Directors Arnold Jackson and Hugh McAleer, and were assisted on financial due diligence by Claremount Chartered Accountants.

JB Plant Hire is one of Northern Ireland’s leading plant hire companies, operating from two sites in Omagh and Dungannon.  The business has a strong track record of delivering high quality plant hire services across the west of Northern Ireland and has established a loyal and diverse customer base.

This latest acquisition further strengthens Briggs’s position in the Irish plant hire market following the purchase of Laois Hire in Portlaoise and Balloo Hire Ltd in Dublin earlier this year and builds on the position established through the acquisition of Balloo Hire in Belfast in 2019.

With the recent Government announcement that current coronavirus restrictions in England will remain in place for a further four weeks, many employers who had been preparing for workers to return to the office on 21^st June will have to delay their plans.  Following a prolonged period of ‘working from home’, many employers will welcome the prospect of a full return to the office in the near future.

However, it is clear that some employees would prefer to continue homeworking on a full time basis so it is likely that many employers will adopt some sort of balance between the two.  In any event, it is vital that employers carefully consider their health and safety obligations and plan how their staff can safely return to the workplace.

Current Law

An employer’s overarching obligations are set out in The Health and Safety at Work (NI) Order 1978 where it states that “it shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees” and this duty is extended to anyone else who may be affected by the employer’s business.  The Order also puts legal responsibilities on employees to take reasonable care for their own and others’ health and safety and to cooperate with their employers to help them meet their duties.

The Management of Health and Safety at Work Regulations (NI) 2000 specifically makes it a legal requirement for employers to carry out ‘suitable and sufficient’ risk assessments.

In the current climate, it is extremely important that employers consider their existing health and safety responsibilities along with keeping up to date with the latest Government and HSE guidance and be prepared to adapt.  Failure to comply with health and safety law can result in both civil and criminal liabilities for employers.  The methods of enforcement available to HSENI include verbal warnings, letters of advice/recommendations, improvement and prohibition notices and formal cautions.  For more serious breaches, penalties may include fines, director disqualification or even imprisonment.

COVID-19 Risk Assessment

Most companies will already have a COVID-19 risk assessment in place, as it has been a requirement since the early stages of the coronavirus outbreak.  Within this risk assessment, employers should look at:

• What work activity or situations might cause transmission of the virus
• Who could be at risk
• How likely it is that someone could be exposed
• Act to remove the activity or situation, or if this is not possible, to control the risk.

It is important that these risk assessments are updated and kept under regular review and communicated with staff.  If an employer has fewer than five employees, the risk assessment does not have to be written down but a documentary record is an easier way to demonstrate the risk assessment has taken place.

Further Measures to Consider:

• Consultation with employees: There is an emphasis on the existing requirement to consult with employees in assessing workplace risk and in developing and reviewing workplace health and safety policies.  See  latest HSE guidance on talking with your worker about preventing coronavirus – https://www.hse.gov.uk/coronavirus/working-safely/talking-to-your-workers/index.htm
• Provision of PPE: For example, installing Perspex screens at reception areas and in between desks etc. 

• Monitoring: Keep a record of who is coming into the office to include visitors to the premises for NHS Test and Trace purposes.
• Meetings: Conducted remotely rather than in person where possible. 

• Provision of additional handwashing facilities throughout the office 

• Keeping the workplace sufficiently clean: Consider increasing how often surfaces, communal areas and other regular touch points are cleaned.

• Making sure all employees/visitors follow social distancing rules

• Increase Ventilation: The latest guidance places emphasis on the use of ventilation to reduce the risk of aerosol transmission.

The above are examples of some measures that could be taken and is not intended to be an exhaustive list as each individual business will have its own specific risks and needs.

Should you require advice or assistance in relation to any of the above please do get in touch with Ashley Black in our Health and Safety Team or a member of our Employment Team

Damian McParland has described a major US investment into Derry headquartered digital learning company Learning Pool as a ‘huge moment in a true Northern Ireland success story’.

Millar McCall Wylie acted for Learning Pool and its management, including founder Paul McElvaney, in the deal, which sees US based private equity firm Marlin Equity Partners buy out Carlyle Cardinal Ireland (CCI), a company that invested in Learning Pool five years ago.

The transaction, which represents one of the largest ever US investments in a Northern Ireland business, was managed by our corporate team, led by Damian McParland, assisted by Louise Cavanagh and Hayley Cummings.

“This deal represents a huge moment for Learning Pool, a pioneering local business making its mark on the world stage – it’s a true Northern Ireland success story,” said Damian McParland, Director, Millar McCall Wylie.

“Millar McCall Wylie has acted for Learning Pool from its inception in 2006 through all stages of its journey, including the previous investment by CCI in 2016 and various significant acquisitions in recent years.

“We are particularly proud to have acted for the company in securing an investment which will see it increase its workforce and expand its already ambitious horizons. We extend our congratulations to Chief Executive Paul McElvaney and everyone at Learning Pool – we have no doubt the business will continue to thrive as it enters this new chapter,” Damian McParland said.

Learning Pool CEO Paul McElvaney said, “it was great to have MMW on board as legal advisors, as they have been from the outset, providing excellent, commercially focused advice and guidance to the business and the management team.”

With the long-awaited reopening of the hospitality sector now in full swing, and the summer season about to begin, there has never been a better time for pubs, restaurants and hotels to review their current liquor licence arrangements and take action to increase capacity and make use of any outside space available to them.

While a blind-eye may have been turned initially to certain businesses trading in breach of their properly licensed areas, in recent weeks we have seen PSNI and Council officials taking tough action resulting in more lost trading time.

In order to utilise all available space and avoid costly closures, one avenue to consider is the Pavement Cafes legislation, which allows a business to apply to the local council for temporary permission to use an adjacent public space (e.g. public footpaths) for tables and chairs. This means customers can be served in an open air setting, and can mean a valuable increase in customer capacity.

A more permanent solution is available to those businesses that have, for example, a rear yard or other outside space within the boundaries of their own premises.  A beer garden, outside smoking area or similar can be permanently licensed for serving customers, via an application to the county court.

For a cost free discussion of the licensing process, please contact John Finnegan  on 02890 200050 or by email at john.finnegan@mmwlegal.com

Further to our update last week, official guidance has been published on the extension of the furlough scheme. Although it provides a degree of clarification on the operation of the scheme going forward, ambiguities still exist on a number of issues particularly its interaction with employee pay and notice periods.

The guidance, which will be added to later this month, covers the period from 1st November until 31st January next year, when a review of the scheme will determine whether any changes are necessary in light of the economic conditions.

The guidance confirms the central tenet of the extended scheme, as announced by the Chancellor last week, that employers will have the renewed ability to claim 80% of employees pay for hours not worked up to a cap of £2,500 per month. Employers remain responsible solely for their national insurance and pension contributions.

Employees will be eligible for the scheme if employed as of 30th October, subject to an RTI submission being provided to that affect. Equally, employees who were on their employers’ payroll as of 23rd September 2020 and subsequently made redundant can be reemployed and then claimed for. Employers will also welcome the retention of the flexibility component of the scheme, with employers able to use the scheme in this manner as and when it aligns with their business needs. There is also scope under the guidance for employers to claim retrospectively for employees pay from 1st November. They must however, act to put in place the appropriate arrangements by this Friday, November 13th. For retrospective, and all other furlough claims, this includes obtaining written agreement from the employee in question.

A big talking point employers should be aware of is the impact of the guidance on employee pay for notice periods. As it stands employers can claim a furlough grant to cover an employee’s statutory notice period, however, the guidance states that the government intends to review whether employers should be eligible to claim furlough pay for employees serving notice periods whether contractual or statutory and a ‘change’ will happen from December 1st. We await the precise details on the substance of this change later in the month, however, it is already clear this shift will have major implications for employers in terms of workforce planning considerations.

Another interesting note is that the guidance makes clear the scheme is not intended to act as a substitute for statutory sick pay in terms of short terms absences from work, but it is a matter of employer discretion whether to furlough those who are extremely clinically vulnerable to the virus. Equally, it is noted that Employers cannot claim for statutory sick pay and a furlough grant for the same employee, for the same period.

Further nuances between the updated scheme and its forerunner are that there will be no maximum number of employees that any single company can place on ‘furlough’, there will however be a published list of companies who are utilising the scheme from December 1st. We would suggest this may have been provoked by the widespread misappropriation of the scheme first time round.

Should you require advice or assistance in relation to any of the above please do get in touch with Jan Cunningham or David Mitchell in our Employment Team.

Caroline Prunty, Partner, Millar McCall Wylie, has commented on the situation many women in Northern Ireland find themselves in regarding the Essure sterilisation device.

Essure, manufactured by Bayer Pharmaceutical, was removed from the UK market in 2017. Many women who were fitted with the device have since suffered complications including damage to the fallopian tubes, severe abdominal cramping and irregular bleeding, amongst others. Caroline Prunty comments:

“There was clear evidence that the use and fitting of the Essure implant was known to have caused significant problems for the patient.

“Whilst the manufacturer maintains that it was safe for use, its withdrawal from the UK market in 2017 could reasonably be viewed as an admission that for certain patients the implant caused very significant symptoms.

“The Department of Health in Northern Ireland advised the Trusts that Essure had lost its CE certificate in 2017 and, as such, it should not have been used by any Health trust thereafter. It is highly likely that any patient who has been fitted with the Essure implant after this date would have a claim in negligence against the relevant Trust.

“In respect of patients fitted before this date, it may well be, that they too, could successfully bring a claim against the relevant Trust. Whether the device should be removed would have to be determined on a case by case basis following appropriate and detailed advice from the treating doctor or consultant.”

If you believe you have been affected by this matter, please contact Caroline Prunty and her litigation team at Millar McCall Wylie to seek advice.

Following on from our recent article on same sex marriage in Northern Ireland, Millar McCall Wylie’s Family and Matrimonial team welcomes the coming into force today, 7th December 2020, of the Marriage and Civil Partnership (Northern Ireland) (No. 2) Regulations 2020 which allow same sex couples to legally convert their existing Northern Ireland civil partnerships into marriages and which finally bring our law on same sex marriage into line with our neighbours in the UK and the Republic of Ireland. Seventeen couples are expected to complete the conversion process today!

What is the procedure?

The procedure appears to be reasonably straightforward. Part 2 of the Regulations grants the right to convert and, once the civil partnership has been converted, the original civil partnership ends and the couple is treated as having been married since the date that their civil partnership was formed.

Part 3 (in particular Regulation 7) describes the different conversion procedures. Each procedure has two parts. First, the couple must provide the required information to the registrar at the register office (such as personal details and the civil partnership registration document) and pay the fee; secondly, the couple must sign a conversion declaration. Under the “standard procedure”, both parts may be effected on the same day. Under the “two stage procedure”, a couple may choose to have the second part on a different date, thereby arranging a special time and place for the signing of the conversion declaration. There is a “special procedure” to cover situations where one of the couple is, for example, seriously ill or permanently in hospital.

Couples should note that there is a time limit of three years from today during which the conversion process can take place. Couples should also note that the fee for conversion has been waived for conversion during the first year (from 7th December until 6th December 2021).

Equally under the regulations, existing Northern Ireland opposite sex marriages may be converted into civil partnerships in a similar way.

These Regulations marks the end of a year of significant and very important change in marriage equality law here.

If you require legal advice on any aspect of marriage or civil partnership please feel free to contact Clare Lenaghan or Louise McNally at our Family and Matrimonial Department on 02890 200050 .

As lockdown restrictions are extended for a further 4-week period until 5th March, the cancellation of AQE and GL assessments earlier this month have created a cloud of uncertainty around post primary school transfers.

On 5th January 2021, the NI Executive announced that both GL and AQE Assessments had been cancelled for academic year 2020/2021. This was a disappointing and frustrating announcement for many children due to undertake the assessments, and for parents who had worked hard throughout the year helping to prepare their children.

The question still to be decided is will my child be allocated a post Primary School place? Will my child get his/her first choice? What selection criteria will be applied to him/her? What if any of the criteria does my child meet?

An announcement followed from the Education Minister, Mr Peter Weir – schools were advised to create their own “admissions criteria” for pupils enrolling for the 2020/2021 academic year. Parents are now frantically searching for admissions criteria for their child’s preferred school to see whether he/she would get a place at the first choice school. It is inevitable that a significant number of schools shall be oversubscribed and as a consequence the admission criteria, which can differ considerably from school to school will be crucial in determining which pupils will secure a place. The admissions criteria must be lawful , requiring the school to ensure that it complies with the legislation covering amongst other things race, sex and disability and inherently prejudicial to those applying. Parents should therefore carefully consider the published criteria for each school and seek professional legal advice if the admission criteria appears to be flawed. If so, then in appropriate circumstances it may be possible to successfully judicially review the criteria. Any such application must be brought expeditiously.

It is advisable for all parents to familiarise yourself with each preferred school’s admission prior to submitting their application to ensure their child meets the specific requirements of that particular school(s). Some parents are already seeking legal guidance.

In Northern Ireland, all children aged 4 to 16 are legally entitled to a school place. Unfortunately, a child’s preferred choice cannot be guaranteed. If your child does not get a place at his/her preferred school then you have right to appeal this decision to an Independent Tribunal. The Education Authority (EA) sets up the Independent Tribunal. The grounds for appeal are-

(i) The post primary school applied for did not apply its admission criteria

(ii) The post primary school applied for did not apply its admission criteria correctly

The EA shall set a closing date for appeal applications to be submitted. Parents should pay particular attention to the EA’s website to ensure deadlines are not missed.

If you feel you have met either ground for appeal as outlined above then any such appeal should be submitted by completing the relevant appeal Form (AT1 Form). When considering appeals the Tribunal will look at all evidence which was available to the Board of Governors of the school applied for at the time they were offering school places. The Tribunal is only able to consider all documentation previously available to the Board of Governors– the Tribunal cannot consider any additional information and/or documentation which may be produced on appeal. a, The Tribunal has no power to challenge a particular school’s admission criteria.

If this process has been exhausted, and the parents and child are not satisfied with the outcome then in certain circumstances it may be possible to apply to the courts to Judicially Review the decision of these Tribunals. The grounds for judicial Review are limited to breaches of procedure bias and unfairness. Judicial Review does not provide an appeal on the merits. There are strict time limits which must be adhered to and as stated above the application must be brought expeditiously. The Courts in the past have provided relief to applicants and referred the applications back to the relevant bodies for a proper determination.

Parents of those pupils transferring to Post Primary Schools in September 2021 can submit their online applications to the Education Authority (EA) from 12 noon on Monday 1st March 2021 to 4pm on Tuesday 16th March 2021. In addition, the Admissions Criteria for Post Primary Schools will be available from the EA on Tuesday 2nd February 2021.

It is inevitable that disappointment will exist for some families once post primary school places have been allocated. It is up to the parents to then immediately follow the procedures we have set out above. If in any doubt you should seek legal assistance.

If you and your child are not happy with the decision made by EA in relation to post primary school placement and believe you have grounds to exercise your right of appeal then contact Louise McNally in our Family Law Team on 02890 200050. Louise will provide you with clear and concise expert advice and will help guide you through the appeal process and any subsequent legal challenge.

The High Street has been coming under increased pressure over the last number of years with online shopping becoming more popular than ever before. However, the Covid-19 pandemic has exacerbated this problem, leading to well-established high street brands reconsidering the future of their companies. This has most recently been evidenced by the collapse of the Arcadia Group, which led to the sale of the Topshop, Topman and Miss Selfridge brands to online fashion retailer, ASOS. Furthermore by the sale of the Dorothy Perkins, Wallis and Burton brands to online fashion retailer, Boohoo.

ASOS announced the deal to save the brands at 7am on 1st February and by 7.45am had sent out a tweet welcoming Topshop and Topman to “the ASOS family”. However, the administrators of the Arcadia group, Deloitte, subsequently announced that around 2,500 staff at 70 stores would not be part of the acquisition, resulting in significant job losses. This failure to inform and consult with employees caused major uproar on social media by disgruntled employees.

Pursuant to employment legislation, Employers are legally required to consult with employees prior to making their positions redundant and must formally notify them that their roles are at risk of redundancy. If an Employer is planning to make 20 or more employees redundant at one location within a 90 day period, the Employer has greater obligations which they must adhere to by following a collective process. In these circumstances, Employers must consult with the Trade Union involved in the business or alternatively with elected employee representatives before any employee is given notice of redundancy. Employers are also required to commence a minimum 30-day consultation process with the employees involved. During this time, employers should explore any alternative options to redundancy.

If Employers fail to follow the collective consultation process, employees may be eligible to make a protective award claim. If covered by a protective award, an Employer is liable to pay an employee’s gross salary for a protected period of up to 90 days. This applies to all full time and part time members of staff, regardless of the length of time they were employed.

Arcadia employees have reported that their employer did not put them on notice of a potential redundancy situation nor did they consult with them. Consequently these employees will have claims for automatic unfair dismissal and protective award.

In order to pursue a claim, an employee must submit an ET1 Claim Form to the Industrial Tribunal within 3 months of the date of the effective date of dismissal. In this case, the effective date of dismissal will be the employee’s date of termination as stipulated by Deloitte, the administrators of the Arcadia group.

Whilst the Arcadia group may not have sufficient funds to pay for the potential protective awards to employees, employees are entitled to claim the protective award from the Redundancy Payments Service NI (which forms part of the Department of the Economy) for up to 8 weeks gross pay, capped at £560.00 per week.

This serves as a warning to Employers, that they are still under a duty to comply with all employment legislation regardless of covid-19 or any economic or commercial factors. Employers must carry out a thorough consultation process with employees before commencing a redundancy process, as in the alternative, employees can pursue a potential protective award claim against them in the Industrial Tribunal.

Employees of Topshop, Topman, Miss Selfridge, Dorothy Perkins, Wallis and Burton are encouraged to get in contact with Jan Cunningham or David Mitchell in our Employment team to seek advice in relation to a potential claim.

An Employment Tribunal in England rules that Employee’s dismissal for refusal to wear face mask was fair in Kubilius v Kent Foods Limited [2021].

The Claimant in this case, Mr Kubilius, was employed as a delivery driver by Kent Foods Limited (Kent) and transported food products to the Respondent’s clients, one of which was Tate & Lyle. The Claimant was employed by the Respondent from 25th July 2016 until he was dismissed without notice on 25th June 2020.

Within Kent’s Employee Handbook it outlined that it is essential to retain a good relationship with clients and suppliers. The handbook required employees to take all reasonable steps to safeguard their own health and safety and that of others as a result of their actions at work and specified that all customer instructions regarding PPE must be followed.

The majority of Mr Kubilius’s daily work involved travel to and from the Thames refinery site of Tate & Lyle. Due to the ongoing COVID-19 pandemic, Tate & Lyle required face masks to be worn on-site and all visitors were issued with a face mask on arrival. On 21st May 2020, despite being asked by two Tate & Lyle employees, Mr Kubilius refused to wear a face mask while he was in the cab of his vehicle. He was informed that without a mask, droplets from his mouth could land on people’s faces due to his elevated position in his cab. He was further reminded that Tate & Lyle’s rules stipulated that all visitors must wear a face mask until they leave the site. Mr Kubilius continued to refuse to wear a mask, arguing that his cab was his own area and that it was not a legal requirement to wear a face mask.

Following this incident, the Client reported the matter to Kent Food Limited and banned Mr Kubilius from its site. The Respondent conducted an investigation into the matter and held a disciplinary hearing with the Claimant. The Respondent concluded that in refusing to comply with the client’s instruction to wear PPE, he had breached the requirements to maintain good relationships with clients and to co-operate to ensure a safe working environment. Mr Kubilius was therefore summarily dismissed on 25th June 2020.

The Employment Tribunal held that the dismissal had been fair. They ruled that the Respondent had a genuine belief that Mr Kubilius had been guilty of misconduct having carried out a reasonable investigation and as such had acted reasonably in treating the alleged misconduct as a sufficient reason for dismissal. The Respondent’s decision to dismiss fell within the range of reasonable responses.

This case provides a valuable insight as to how our Industrial Tribunal may approach similar cases relating to health and safety issues stemming from the COVID-19 pandemic. It should give employers some comfort that they can discipline or dismiss staff for failing to comply with reasonable requirements brought in to combat the spread of the virus.

Should you require advice or assistance in relation to any of the above please do get in touch with Jan Cunningham or David Mitchell in our Employment Team.

Off-payroll working rules, known as ‘IR35’, were introduced in 2000 and require people who work in a similar way to an employee, but through their own limited company or other intermediary, to pay tax, and National Insurance Contributions (NICS) like employees. It is an attempt by HMRC to crack down on those seeking to avoid the increased tax and NIC costs associated with being classed as an employee by ‘disguising’ their employment.

IR35 rules changed for public sector organisations in April 2017 and will now change for non-public sector organisations on 6th April 2021. Under the new rules, the end-user (also known as the client, engager or hirer) will now be responsible for determining if the off-payroll working rules apply. The client is the organisation who is or will be receiving the services of a contractor.

The following four-part test is used to determine whether the new rules apply to the end-user:

1. Size – The revised rules will only apply to medium and large companies and will not apply if the end-user is a ‘small company’. A company will be classed as ‘small’ if it has two or more of the following:

an annual turnover not exceeding £10.2m
a balance sheet total of not more than £5.1m
an average of no more than 50 employees for the company’s financial year.

If a worker, or the person a client contracts with, is uncertain about the size of the end-user it can formally request confirmation from the end-user which must reply within 45 days of any such request.

2. Personal Service – An individual worker must personally perform, or be under an obligation personally to perform, the services for the end-user.

3. Qualifying intermediary – The services must be provided not under a contract directly between the end-user and the worker, but under arrangements involving a third party e.g. a limited company, partnership or another individual.

4. Deemed employment condition – Contractors must operate like an employee. The end-user is required to assess whether the contractor is employed or self-employed for tax purposes. Employment law tests of control, mutuality of obligation and personal service are relevant in assessing the employment status of the contractor for the purpose of the rules. Both contractors and end-users should seek Employment Law advice in respect of these tests on a practical level.

Once the end-user has determined whether the off-payroll working rules apply they must confirm its assessment together with reasons in a Status Determination Statement (‘SDS’) to be issued to the worker and any third party it contracts with. The end-user must take reasonable care in making that assessment as HMRC may review their decision. The end-user is also required to have a dispute resolution procedure to enable the contractor to challenge their assessment.

If the assessment concludes that the contractor is out of scope of IR35, the limited company or other intermediary can continue to be paid gross. If, however, the contractor is assessed as within IR35, the fee payer is responsible for operating PAYE and deducting employee National Insurance Contributions on the fees it pays to the limited company or other intermediary (excluding VAT).

Failing to comply with the IR35 rules can result in penalties from HMRC. However, we understand that HMRC will not issue penalties for any errors for the first year after the roll out of the rules, except in the cases of deliberate non-compliance.

To receive expert and tailored advice as to how this will affect your business, please contact Jan Cunningham, David Mitchell or Louise McNally in our Employment Team.

MMW are delighted to have assisted Hays Travel in its agreement to acquire the retail portfolio of Thomas Cook stores throughout the UK.

Real Estate Partner, Simon Fleming, led the team in advising on the Northern Irish aspects of the deal which represents a much needed boost to the local economy.

We are delighted to announce that we have been awarded Top-Tier Firm Status in the world’s largest referral guide, Legal 500.

As the firm experiences double-digit growth, we have more than doubled the number of individuals on the Leading Lawyers listing with five partners recognised across a broad range of sectors. An additional five partners were rewarded Recommended Lawyers status bringing the representation of MMW lawyers on the Legal 500 listing to the highest number ever.

Standing alongside Damian McParland, Jan Cunningham, Conor Wylie and Scott Kennedy on the elite leading individual listing, Managing Partner Peter McCall commented, “Our growth would not have been possible without the hardwork and dedication of the people and individuals in our team. I am proud that so many individuals have been singled out for their expertise and professionalism, working with quality clients both locally and internationally. The latest Legal 500 guide continually references the enthusiasm, diligence and personal approach of the recommended Millar McCall Wylie lawyers and we are truly delighted to receive such recognition.”

Partners on the recommended referral guide include Abbie Long, Caroline Prunty, Andrew Kerr, Simon Fleming and John Finnegan joining the list for the first time.

We are delighted to announce that we have been shortlisted for Professional Services Firm of the Year in the First Trust Business Eye Awards.

The 2019 awards will take place at ICC Belfast on Thursday 28th November 2019.

Best of luck to all on the shortlist.

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We are delighted to renew our sponsorship of Ulster’s historic Junior Cup rugby competition for two further years.

We are proud to be supporting the competition and strengthening our long-standing relationship with Ulster Rugby.

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Millar McCall Wylie are delighted to be sponsoring the Irish News Ulster All-Stars again this year. For the first time ever, this year there will be a Camogie, Hurling, Ladies Football and Football All-Star team.

Click the link below to for further information on how to cast your vote.

allstars2020.com

Supreme Court hands down landmark judgment in Uber V Aslam and Others [2021] UKSC5, ruling that Uber Drivers are ‘Workers’ rather than Self-employed Contractors.

Two Uber drivers, Yaseen Aslam and James Farrar, originally brought a claim against Uber in 2016, arguing that they were workers employed by Uber rather than self-employed contractors, and as such, were entitled to rights such as minimum wage, holiday pay and rest breaks. The UK Employment Tribunal and Employment Appeal Tribunal previously ruled in favour of the Claimants, ruling that the drivers should be classed as workers employed by Uber. The matter was subsequently referred to the Supreme Court, with the case being heard in July 2020.

The Supreme Court has now released its long awaited judgment today, unanimously dismissing Uber’s appeal. Uber’s representatives argued that the drivers are independent contractors who work under contracts made with customers and do not work for Uber. However, the Supreme Court disagreed with this submission citing the fact that as there was no written contract between the drivers and Uber London, their relationship had to be inferred from the parties’ conduct.

The Supreme Court, in their evaluation of the parties’ conduct, made reference to the fact that Uber sets the fare charge and drivers are unable to charge more than the amount calculated by the Uber App. The contract terms on which the drivers perform their services are imposed by Uber and the drivers have no right to challenge this. Uber restricts the communication between passenger and driver to prevent drivers from establishing a relationship with passengers. And ultimately, the fact that the drivers are provided work by way of the Uber app, which is tightly defined and controlled by Uber. Therefore, Uber have a significant level of control over the drivers and the drivers rely on Uber to provide them with work. On that account, the Supreme Court ruled the correct inference to be drawn in this instance is that Uber London contracts with passengers and engages the drivers to carry out the bookings on behalf of it.

On the basis of this rationale, the Supreme Court decided that the Uber Drivers were in fact workers rather than self-employed contractors. Interestingly, the Supreme Court ruled that the drivers are workers from the moment they switch on their app and are available to work, until the time they switch off their app at the end of the day.

As a result of this judgment, Uber drivers are now entitled to claim minimum wage which is to be based on their entire working day rather than basing it solely on when they had a rider in their cab. They can claim up to two years’ back pay or £25,000 (whichever is the larger) in an employment tribunal, or alternatively up to six years’ back pay in the county court. This is in addition to them being able to claim 5.6 weeks’ paid annual leave each year and having whistleblowing rights. However, it is noted that this recognition of worker status does not provide them the right to claim a redundancy payment or claim unfair dismissal.

This is a fundamental judgment which will continue to have long-term consequences for all of the UK’s gig economy, which has an estimated workforce of 5.5 million people. It demonstrates that when faced with cases of a similar nature, The Employment Tribunal will consider the practical reality of the relationship between the parties, rather than focussing on the documentation and what the parties have classed the relationship as being.

Should you require advice or assistance in relation to any of the above please do get in touch with Jan Cunningham or David Mitchell in our Employment Team.

The Supreme Court has given its eagerly awaited judgment in respect of Covid-19 Business Interruption Insurance cases. The case was fast tracked to the Supreme Court to provide policyholders and insurers with definitive legal rulings in respect of the interpretation of Business Interruption clause in policies of insurance. The case was brought by the Financial Conduct Authority (FCA) on behalf of the policyholders.

The FCA had enjoyed a successful judgment in the High Court which the insurers appealed; at the same time the FCA lodged cross appeals on behalf of policyholders. The Supreme Court dismissed the insurer’s appeal and allowed the cross appeals by the FCA.

The Supreme Court decision inter alia dealt with: the interpretation of disease clauses; the issues regarding prevention of access; hybrid clauses; causation; trends clauses; pre-trigger clauses and overruled the decision in the Orient Express case.

The Supreme Court judgement is legally binding on the insurers concerned and undoubtedly provides clear authoritative guidance for the interpretation, not only of the precise wordings in the contracts before the Supreme Court but will also be significant in the interpretation of similarly worded contracts.

Each policy of insurance which provides Business Interruption must be considered against a detailed complex judgement delivered by the Supreme Court. The judgement is very detailed and runs to over 100 pages interpreting a number of different insurers clauses and providing guidance on these and similarly worded clauses from other insurers. The rulings provided by the Supreme Court are very significant and require to be carefully analysed in respect of Business Interruption claims. HISCOX has already made the following statement:

“The Supreme Court largely confirms the outcome of the High Court’s ruling that, except in rare circumstances, cover is restricted to HISCOX policyholders who were mandatorily closed. Fewer than one third of HISCOX’s 34,000 UK business interruption policies may respond as a result.”

There is already an indication that insurers will still maintain a denial of liability, and it is likely even if liability is accepted there will be many disputes on quantum.

Millar McCall Wylie strongly recommend that you now look to your insurance policies to determine whether you have effective cover for Business Interruption arising out of closure as a consequence of the pandemic. Additionally clients should seek advice where insurance brokers have failed to offer disease and/or denial of access extensions to Business Interruption as there may also be legal redress against the broker.

It is likely that clients will require specialist solicitors to advance claims either in respect of liability and quantum under the policy. Millar McCall Wylie’s Litigation Team are already assisting clients in dealing with their claims in respect of Business Interruption claims. Please get in touch if you think we can help you.

Despite some positive news in respect of a vaccination programme beginning, this has been tempered with the recent announcement that Northern Ireland will be plunged into a six week lockdown. The prospect of measures akin to those endured at the start of the pandemic would do little to inspire festive cheer.

What is normally a time to celebrate and gather together, will be something unrecognisable. The balancing act between suppressing the virus and stimulating the economy is certainly an unenviable task. But employers will be forgiven for their frustration and disappointment, looking forward in dismay in the absence of what many hoped would have been a brighter start to the New Year.

The latest ‘curve ball’ is the effect of the new strain of covid-19 which appears to be spreading more quickly than previous incarnations. This has caused most countries to close their doors to those travelling from mainland UK. The effect this will have on Northern Ireland is yet to be determined and we await more details from the Executive today.

In one positive development the Chancellor has outlined a reinforcement of the financial supports available to businesses struggling against the ongoing economic hardship.

Most notably from an employment perspective, the Furlough Scheme has been extended yet again and will now run until the end of April 2021. Originally intended to be the subject of review at the end of January, the Chancellor has confirmed the government will continue to pay 80% of employee’s salary for any hours not worked all the way until the end of the end of April, with the burden on employers solely to pay wages for hours worked and cover their NICS and pension contributions. The eligibility criteria for the scheme remain unchanged and it continues to remain available in all corners of the UK. Whether this will be the last hurrah for what has become one of the many buzz words of the year remains to be seen, but will certainly factor into what will be difficult workforce planning decisions in the New Year.

Employers should also be aware that the Furlough extension fits into a wider matrix of businesses support measures, with a greater time frame allowed to access state backed business interruption loans.

A final note is a key date for your 2021 calendar, the 3rd of March. This has been confirmed as the date the Chancellor will outline the Budget for the ensuing financial year, surely one of the most intriguing in modern times, he will attempt to paint a picture of the economic face of the UK post pandemic.

Should you require advice or assistance in relation to any of the above please do get in touch with Jan Cunningham or David Mitchell in our Employment Team.

Millar McCall Wylie have supported the Eastside Awards since they began five years ago and look forward to continuing to do so.

Please get involved and tell your story of living through the pandemic on the Eastside Awards website.

The closing date for story submissions is this Friday 18th December 2020.  Watch the video below to hear further information from our very own, Conor Wylie.

Millar McCall Wylie are thrilled to continue their relationship with the Eastside Awards and be a part of ‘East Belfast — Our Story 2020’.

Eastside Awards has built a reputation for recognising all that is good about East Belfast and this year, more than any other, the organisers want to hear uplifting stories of how the community has pulled together and how businesses have innovated to survive.

‘East Belfast — Our Story 2020’ will showcase contributions made to the economic, social and community development of the area.

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As part of our continued growth and commitment to offering expertise for everyone, we have promoted five Solicitors to Associate in recognition of their contribution to the firm and importantly to our clients.

The promotions are reflection of our diversity of legal services with Louise Cavanagh promoted to Associate in our Corporate Team, Fiona McFlynn in our Residential Property Team, Clare Lenaghan and Louise McNally in our Family & Matrimonial Team and David Mitchell in our Employment & Tax Disputes Team.

Commenting on the promotions, Managing Partner, Peter McCall, stated that “all 5 individuals reflect the culture of collegiality which is at the heart of Millar McCall Wylie and have shown tremendous commitment to the firm and our clients throughout the past year and are extremely deserving of their promotion”.

Head of Employment Law, Jan Cunningham, appeared on Cool FM News this morning discussing the need for employers to report furlough overpayments to HMRC by October 20th or they may face fines or even criminal sanctions. HMRC report that approximately £3.5 billion has been incorrectly paid under the Coronavirus Job Retention Scheme (around 10% of all payments).

The full video can be found by clicking the link below.

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Millar McCall Wylie has been crowned the Corporate Law Firm of the Year for the first time at the prestigious Northern Ireland Dealmaker Awards on Thursday evening.

The full-service law firm was also the lead advisor in the transaction which won the Deal of the Year (under £2.5m) category, with Edition Capital Investments investing in Kanisi. MMW Partner, Scott Kennedy, led this Series A funding round, acting for Kanisi.

Taking place at The Europa Hotel, the NI Dealmaker Awards, which celebrate their 10th anniversary in 2020, recognise the professional advisory firms and funders in Northern Ireland and some of the best deals in which they were involved in.

Last year was an exceptional year for Millar McCall Wylie with the judges praising the corporate team for increasing revenues by 20% in 2019. Corporate deal highlights included an investment by TechStart in MMW’s client RETiniZE, specialising in virtual reality, augmented reality and immersive multi-screen experiences, as well as the Series A funding round for Kanisi, and Learning Pool’s acquisition of shares in HT2.

Millar McCall Wylie Partner, Damian McParland commented on the success: “We are very proud to be named Corporate Law Firm of the Year and for our corporate work to be recognised at this level, including our lead advisory role for Kanisi in one of the Deal of the Year categories.

“As a team, we always strive to get the very best results for our clients, building strong relationships to achieve successful outcomes. We have ambitious clients, such as Learning Pool, Kanisi and RETiniZE, many within the technology and digital space, and we are proud to help them on their very successful journey.”

The firm has enjoyed significant double-digit growth in the last number of years, as it celebrates over twenty years in business.

This continued growth has enabled MMW to build its reputation both nationally and internationally, delivering legal services across an extensive range of practice areas and is also a member of one of the world’s leading global legal networks, Multilaw.

Millar McCall Wylie has announced a sponsorship deal with Ulster hockey’s most prestigious male competition, the Kirk Cup. This year’s Boxing Day final will see one of the biggest rivalries in Irish hockey resume as holders Banbridge face Lisnagarvey at Stormont.

Chief Operating Officer, Christopher McCandless said: “We are thrilled to be sponsoring the Kirk Cup, both this season and next. The final of the competition is Ulster hockey’s biggest day of the season as the equally prestigious ladies Denman Ulster Shield is also competed for, and there have been some very memorable matches down through the years. Millar McCall Wylie is proud to support sport across Northern Ireland, from grass roots right through to senior level. We recognise the social, economic and cultural value of sport and the huge commitment it takes to be involved, whether that is playing, coaching or working at an administrative level.”

In addition, Millar McCall Wylie’s sponsorship will help support Ulster Hockey’s commitment to and partnership with NI Children’s Hospice. Funds raised on Boxing Day will go towards supporting the important service in Northern Ireland, caring for over 300 local infants, children and young people with life-limited conditions every year.

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