28 LAW SOUTH EAST
The new status of 'employee shareholder' arrives
From 1 September 2013, the new employment status of 'employee shareholder' is in force – meaning that for those employers who are interested, they can seek to employ a new recruit or current employee on a very different basis to the existing employee status, writes Laura Binnie, associate in the employment team, Blandy & Blandy LLP
The deal is that the employee shareholder is offered shares in the company, valuing at least £2,000 and free of capital gains tax (on any growth of the first £50,000), in return for giving up a number of key employment rights, including unfair dismissal, statutory redundancy pay, the right to request flexible working and time off for training. The employee shareholder will need to give 16 weeks’ notice (rather than eight) if they want to return early from statutory maternity, adoption or additional paternity leave.
A number of amendments were made, however, by the House of Lords as the draft Bill passed through Parliament which has
served to minimise the potential reach of this new employment status. There will need to be a written statement of the offer which the employee must take independent advice on and there is a seven-day cooling off period from the day after the advice is received. Jobseekers’ allowance cannot be withdrawn if an employee shareholder job is refused and there is also protection from dismissal or other detriment for existing employees who refuse an offer of employee shareholder status.
The new status might typically be attractive to a start-up company who may have a high turnover of staff, but it remains to be seen whether more well-established
employers will be interested. Ultimately, it is an agreement between the parties and if both agree, the new status will take effect.
Bear in mind that employees now need two years’ continuous service before they become entitled to any unfair dismissal rights, or rights to a statutory redundancy payment, in any event. An employee shareholder will also still have the right to bring any discrimination claim or any automatically unfair dismissal claim. Like 'workers', they are also entitled to the national minimum wage, paid annual leave, TUPE and notice rights etc. Further information from BIS can be found at:
https://www.gov.uk/employee- shareholders.
Exploring some of the myths around
common divorce and separation When the children go back to school in September, it often feels like a new year starting. Some families will have had very happy summer holidays together. For others prolonged contact with loved ones can be the straw that breaks the camel’s back, writes Kerry Fretwell, family law partner, Manches
For those who have concluded that a divorce or separation may be necessary, detailed below are a few common myths which may make interesting reading.
1 It is not adultery because we have separated – No
Even with a separation of many years, any physically intimate relationship outside of the marriage with a member of the opposite sex can be considered adulterous for a divorce petition.
2 Common law spouses have the same legal rights as married couples – Not so
The term ‘common law spouse’ is legally meaningless. Unmarried couples may be distressed to discover that they have little
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financial protection when the relationship ends. Although a cohabitant can make a claim based on property law, there are no rights based on the relationship itself and cohabitants are often treated by private law as unrelated individuals, no matter the length of cohabitation. It is possible, depending on the assets available, to make financial claims on behalf of children still in full-time education.
3 The house is in my sole name so my spouse has no rights over it – No
The family home is likely to be considered an asset of the marriage and therefore a joint asset.
4 Mothers will have custody of the children while fathers have access
Custody and access are no longer recognised terms. The Children Act terms are residence and contact. There is nothing in law that states that it is in the children’s best interests to live with their mother. The court will determine what is in the child’s best interests by considering a number of factors including the child’s age and their express wishes and feelings. There will be no order relating to the children unless one of the parents makes an application to the court under the Children Act. Families are expected to sort out their own arrangements for the children without the court intervening.
5 Everything is split 50/50 on divorce
This is not the case. English law is discretionary and all factors are taken into account to arrive at a fair settlement giving priority to meeting the housing needs of dependant children. If there are surplus assets and each spouse can be reasonably housed with a 50/50 split, this may be the outcome but it depends on the individual case.
Details: Kerry Fretwell 0118-9822640
Manches offers a fixed and free 45 minute consultation for initial guidance.
At present it seems unlikely that the take up of the new scheme will be high, but should you require legal advice on this brand new employment status, or would like to know more about it, please contact our employment team who will be able to assist you.
Details:
Laura Binnie 0118-9516855,
laura.binnie@
blandy.co.uk
THE BUSINESS MAGAZINE – THAMES VALLEY – OCTOBER 2013
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