Shared Parental Leave

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What is shared parental leave?

I’ve been asking a lot of questions about shared parental leave, and that’s a right is coming as of 5th April 2015.

So a lot of employers and employees said “ What is this all about?”

Well, basically, it’s a right that applies to all parents of children, in the sense of children who are born or adopted. And the issue around it, is what happens after the child is either being born or adopted. Usually all of the rights fall to the mother in terms of leave. But what is happening now is that where a mother would have normally had two weeks compulsory leave after the birth of a child, followed by up to 50 weeks of leave to be able to look after that child. That leave is [now] able to be shared by the partner; and that would be the father or a female partner. So what would happen is, where a mother is giving birth to a child she has to take compulsory leave of 2 weeks.

And After that, there is the opportunity for the partner to be able to share those 50 weeks. Now, that can be done in blocks of 3, it can be shared in other ways. It’s all about working it out with your employer. And out of those 50 weeks, 37 of those weeks are paid. And the way in which they are paid, is either statutory pay, which is set at certain level and that is revised every April; or 90% of the full salary, whichever is the lower. Now there are variations of to this in the sense that companies can decide to be much more generous. That applies whether you are an employee trying to look at the staff handbook to decide whether you are entitled to these rights and what it would be; or whether you are the employer, and you need to be redrafting your policies. So that is the way that basically works.

What is the notice period for parental leave?

Now, in terms of giving notice to your employer and qualifying for this, there are very specific rules that are in place, and they can be quite complex.

One of the parents has to work for the employer for a period of 26 weeks, by the end of the 15th week, before the birth of the baby, or the adoption of the baby. So that’s the criteria for one of the parents or carers.

What is the notice period for the second parent for parental leave?

The criteria for the second parent or carer is that they have to work for 26 weeks, in the period 66 weeks, before the birth or adoption of the child. And it has to be the case that they have earned £30, (a minimum of £30), in 13 weeks during that period.

So it is quite complicated. And it’s something that I would suggest that you really look up and sit down with the calculator and a calendar, and figure it out. I certainly recently did that with the employee of one of my clients. Just really sat down with them, with the calculator and went through all of their rights and it made much clearer, rather than having in a handbook, expecting the employee to read about it, it just makes it simpler if you both go through it and everybody knows where they stand.

Does shared parental leave apply to foster parents?

Shared parental leave does not apply to foster parents. Now forester parents is somewhat of an old fashion term. What I mean by that now is that these are the carers of look after children , so it doesn’t apply to you if you are one of those.

When does shared parental leave have to be taken?

The other thing you need to bear in mind is that shared parental leave must be taken between the birth or adoption of a child, and their first birthday ,or a year after the adoption.

So that’s the way that shared parental leave works. It’s something that’s new. I would suggest that it’s something you certainly amend within your staff handbook, and get advice on, because it can be quite technical. And the issue really that is arising, that I am seeing much more of, is that fathers in particular, feel quite bad about asking for the shared parental leave, even though they are entitled still to the 2 weeks of the parental leave that they are qualify for upon on the birth or adoption of a child, they are still entitled to that. It’s more the case that a father is finding very difficult then to ask for parental shared leave. So this might be something worth issuing as party of your staff newsletter or something along those lines, so you’re able to raise it as a subject, so that people are aware they are able to do it, but also so that you keep up to date with the legislation.

Learn how shared parental leave can apply to you, employers and employees.

Zero-Hours Contracts for Employers

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Zero hours contracts – what has changed?

In relation to zero hours contracts, there will no longer be exclusivity clauses. Now, there is whole discussion and debate in relation to zero hours contracts; that is another discussion for another day. Do contact us if you want advice on zero hours contract.

How do the changes to zero hours contracts affect employers?

But in relation to the current government are going to be doing about that, they’re now going to stop exclusivity clauses, which basically means that you as an employer are now unable to say to a member of the staff that they can not work for anybody else – that they have to effectively to be on call for you.

How do the changes to zero hours contracts affect employees?

As an employee, what it means is that you’re able to have a zero hours contract with many employers, which means that you can work in different places, and you are not waiting for work to come in, and not knowing how to manage your budget. There may be other clauses that within the contract mean that you can’t work for competing organization. So be aware of those, but generally what it means is more flexibility for the employee. And for the employer, you need to really start looking being more committed in terms of the hours and planning more, so that staff can have more predictability.

 

 

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‘Special Reasons’ explained in simple terms

What are special reasons?

These have arisen through case law, and amount to reasons which enable a court, to refrain from disqualifying for the commission of an obligatorily disqualifiable offence, or to refrain from endorsing a driving licence with penalty points in respect of an endorsable offence. If the defence submit that special reasons exist then the court would hear evidence to establish if that is the case. if they do find that special reasons exist, they are not obliged either to not disqualify, or to not endorse with penalty points. The finding of special reasons by the court gives rise to a discretion within the court, which should only be exercised in a clear and compelling case. For example, while driving with excess alcohol, or driving whilst unfit, the court might decide not to disqualify if it found that special reasons existed. Or for an otherwise endorsable offence, such as speeding, it might decide not to endorse with penalty points, if it found that special reasons existed. 

So what is the the definition of a ‘Special Reason’ ?

Well it is generally considered that there are four elements which must be present before a circumstance can be found to be a special reason. 

  1. It must be a mitigating or extenuating circumstance;
  2. It must not amount, in law, to a defence to the charge;
  3. It must be directly connected with the commission of the offence; and
  4. It must be a factor the court ought properly to take into account when sentencing.

For example, with a drink-drive allegation, sometimes special reasons can be found to exist, where the distance driven was very short. Especially if there was a strong justification for moving the vehicle. For example it concerns somebody’s safety. Each case turns on its own facts, and is a matter of the court’s judgement.

Driving without Headlights – a Barrister’s advice

I recently received a question about driving without headlights. Effectively, a young driver had got in a car, and driven quite innocently, but driven home and forgot to put his headlights on. He told me, quite candidly, that the reason he didn’t put his headlights on was simply because he forgot. He could see quite clearly because there were road lighting. And he felt he could drive properly. So what it was, was a casual mistake, but of course we all know that’s quite a dangerous mistake, because he may have been able to see but I had to advise him that people coming at him and driving towards him potentiality wouldn’t see him, which of course, we know could end up in disasterous results.

In those circumstances, he was charged by the police when the police saw him -as it unfortunately happen to drive pass the police, and he was charged with careless driving. Now, that was a charge that isn’t specific to headlights, but of course as we know – because he was driving without headlights, and he was a danger on the road. He was careless and not turning on headlights when drove home. So that’s the question I was asked: “Is it an offence to drive without headlights on at night?” And of course, not specifically an offence, but you will be charged with careless driving or you could be charged with careless driving, which is a serious offence.

The Benefits of Direct Access to a barrister, with Stephen Harvey QC

We interviewed Stephen Harvey QC about the benefits of coming to a barrister directly:

How are solicitors and barristers different?

Solicitors and barristers have traditionally performed very different functions. Whilst the solicitor has been responsible for briefing the barrister, the preparation of the client’s case, and in dealing with all of the administration. The barrister’s involvement has been to advise throughout those preparations, as to how the case should be put together, and then to eventually represent the client in court.

Nowadays, however, solicitors and barristers can perform much the same role as each other. However, there still remains a big distinction between instructing a firm of solicitors and instructing a barrister directly. And you will find that there are many advantages in going to the barrister directly.

So what are the advantages of instructing a barrister directly?

The first main advantage of instructing a barrister directly:

The first, and many find the single biggest advantage is that you will deal directly, at all times, only with your barrister in relation to your case, and no one else. A Direct Access barrister therefore provides might be termed that ‘perfect continuity’ from the very beginning of the case. Many of my Direct Access clients have said to me after their cases have concluded that to have had direct telephone and indeed video contact with me throughout the preparation of the case, at any reasonable hour, was one of the most comforting aspects of instructing me directly. And that sentiment was repeated, particularly by those who had gone down the traditional route and had instructed barristers through solicitors in the past; and who then could only have had access to their barrister through their solicitor. In dealing with me, they appreciated not being pushed from pillar to post, from partner to assistant, or referred to a trainee, or to a secretary, and then having to repeat their story over and over again, in order to ensure that their lawyer knew what it was they wanted them to know.

And this very important difference was because, unlike solicitors, each barrister runs their individual practice. Unlike solicitors, barristers do not have partners or assistants to deal with their cases. Therefore, when you want to make contact with me, you will never be put on to another barrister in relation to anything to do with your case.

The second advantage of instructing a barrister directly

The second main advantage, and it’s a very important one, is obviously the one of cost: you only pay one lawyer’s fees.

The third advantage of instructing a barrister directly

And thirdly, by going to the barrister directly, you will get the advice and any representation that you need very much more quickly. Some cases will require considerable investigative and preparatory work. And I have many years worked alongside many highly experienced investigators from a variety of the backgrounds whom I hand-pick on a case-by-case basis to deal with client’s case.

When should I contact my barrister?

By being instructed at an early stage, I can direct operations, and thereby ensure that the preparations are properly focused, and that the conduct of the case is carried out in the most effective way.

When can I contact my barrister?

If you have a problem, I will happily speak with you about it, without any obligation on your part; in order to establish what ways for might be, that might be available to you. This can be done by telephone or secure conference video link. Just get in touch, and we can arrange mutually convenient time.

Taking the First Step – Instruct a Barrister Directly.

When Should I Get In Touch With a Barrister?

The sooner you come the better, because the sooner you come to someone, the better they would be able to take instructions from you, the more time they would be able to dedicate to your case, and the more work they can put into it. But, no, there is no bar of when you can come – and of course, if you call up and I am free, I am not already in court for someone else, we can take instructions, I can take instructions from you. And I can appear in court the very next day, even on the same day if it is complete emergency, you desperately need it. But of course, going to someone in plenty of time is often the best thing, because that means you can prepare the case properly and run the case properly.

Can I speak to a barrister without having an actual court filing?

Often as well, if you come, because you have one of those niggling feelings at the back of your mind, and you think, “ I don’t know whether I’ve got a case or not, but I think something is not right. I’d like to talk to someone about it.” Then, that’s the perfect time to come to someone. Because, of course, often things can be resolved before going to court. There’re many steps you can take to preemptively sort the matter out, and sort the problem out without having to go to court. So the best thing you can do is to take that first step and speak to someone.

Commercial and regulatory investigations and prosecutions

(transcription:)

Businesses, regulations, and the law.

Businesses today, whether they be large or small, have never been subject to so much regulation. And that is so, whether it be Health and Safety regulations, or regulations controlling some other aspect of whatever that is the business is engaged in. You don’t need to tell me that it is difficult enough running a business in these strained economic times, as well as having to look over your shoulder and make sure that you are regulation compliant. And it is becoming increasing time consuming.

The consequences of a regulatory investigation

And any investigation brought by any of the bodies, responsible for policing those regulations may carry with it serious consequences.  Incidents that might give rise to such investigation commonly involve accidents at the workplace, but they can just as easily involve other areas covered by government regulations; such as food hygiene or transport. In fact, when you think about it, there isn’t an area of our lives that isn’t now covered by many, many regulations – some might say too many.

Prosecution as a result of a regulatory investigation

If an investigation leads to a prosecution, the fines are likely to be in the region of 5 or even 6 figures, excluding the prosecution’s costs. The collateral effects would include reputational damage, damaged relationship with clients, shareholder disapproval ( if the company is big enough to have shareholders), adverse affect upon credit lines, and obviously an impact upon personnel. There may also be consequential civil claims, for example, by the state of the deceased, or injured employee seeking damages, who might seek reply upon the fact of a conviction of the criminal court, in order to reinforce their civil claim.

The first thought many may have when the HSC (Health and Safety Commission) or some other bodies responsible for enforcing government regulations knocks on the door, is to reach the telephone and phone a solicitor. And at the end of that case, their bill (no doubt) together with the bill of the barrister, they will most likely instruct,  will fall through your letter box.

Advice and negotiations at an early stage of such an investigation is critical. It can often be critical to the investigation’s outcome. If the matter turns into a prosecution, of course, it will be brought as a criminal case. And that involves specialist knowledge of the regulations, the criminal law generally, and the law of evidence. But most importantly, considerable adversarial skills will be required, either before a Magistrate’s Court, or before a Crown Court and jury if it’s more serious. And now barristers, of course, are the specialist advocates. And I’ve been practised in these criminal courts as a specialist advocate for well over 30 years. I have the resources of a team behind me, a team of investigators who can assist in the preparation of a case, and who can assist me in putting forward, and putting together submissions to an investigating body which may well be pivotal in dictating what the outcome of that investigation will be.

The advantage of instructing a barrister to advise during regulatory investigations

The singular advantage of coming to me in the beginning is that I can advise and negotiate on your behalf during the investigation, and if necessary, ultimately represent you if the matter goes to court. It also means that I have full control over the course of the investigation and the way in which the case is put together. I can also advise you upon the choice of any experts that are required in the case, because over my many years of experience, I have come across many experts and obviously know who are the good ones, and who perhaps aren’t.

Based on my many years of experience, I know who the leaders in their fields are, and so the net result of the instructing me is that the process of delivery of advice, the advice you urgently need, you get it immediately. And if any representation is required thereafter, you have have the advantage of having the person at the helm from the beginning.

STEPHEN HARVEY Q.C.

Criminal Matters and Criminal Prosecutions

What do I do if I am arrested upon the suspicion of a criminal offence?

Anyone who has been arrested upon suspicion of any criminal offence needs the very best of legal advice urgently. With proper and sensible written representations being made pre-charge it maybe possible to influence the police or the Crown Prosecution Service (CPS) as to the outcome of the investigation, and as to whether or not there’s going to be a charge at all.

What do I do if I have been charged with a criminal offence?

But in the event of a charge being preferred, the advice and the steps taken during the course of the investigation can be pivotal to the outcome of the trial. It is common sense that if there is a charge followed by a trial, then the person who is going to eventually appear in court, is by far the best person to advise upon when, which the case should be conducted from the beginning.

What happens if I am convicted of a criminal offence?

Significant financial penalties, if not imprisonment follow criminal convictions, if the allegation involves financial profit, then there are the draconian provisions of Proceeds of Crime Act (POCA), which can mean that most if not all of the person’s assets can be confiscated by the court.

The advantages that I have at both stages, and after 30 years in practice, is that I am recognised as being a senior criminal practitioner. I am a QC (Queen’s Counsel), a silk, representing about 10 or 12 percent of the entire profession.

Criminal advocacy, especially jury advocacy is the specialism of the barrister. That is what barristers have been doing for hundreds of years. There is no rehearsal prior to a court trial. The only substitute for a trial is preparation – and proper preparation, in order to deal with various ways in which the evidence may well unfold. Effective persuasion is the product of years of experience before juries, courts up and down the country. It involves a detailed knowledge of the law and the courts’ procedures, but it also involves a sensitivity to the atmosphere, in which the proceedings are being conducted.

The consequences of a conviction are all too obvious: imprisonment, fines running into thousands of pounds, the prosecution’s costs of bringing the investigation and then proceeding through the court, damage to you and your family’s reputations, a significant loss of family assets if the charges are of a particular nature.

Instruct a barrister directly for criminal defence:

The first instances almost everyone will have, if they are arrested on a suspicion of an offence, is to pick the phone and call a solicitor. However, the new legal horizon is very different, and provides a quicker and more cost effective way forward. You can now access the very best of court room skills as solicitors always have done over the years, by going direct to the barrister. Moreover, I have access to specialist investigators who can be called upon on a case by case basis, in order to assist in a proper and complete preparation of your case. They will be hand picked for particular tasks. I can also advise you upon the choice and instruction of any experts that are required for the purposes of the case. The net result of coming directly to a barrister is that the process of the delivery of the advice is quicker and you get a highly experienced specialist’s help from the outset.

Review of convictions in Joint Enterprise

Note prepared by Stephen Harvey QC –

Stephen-Harvey-QC---the-Benefits-of-Direct-Access

R v JOGEE (APPELLANT), and RUDDOCK (APPELLANT) v THE QUEEN (RESPONDENT) (JAMAICA) [2016] UKSC 8; [2016] UKPC 7.

Preliminary:

The recent joint decision of the Supreme Court and the Judicial Committee of the Privy Council, in the case of R v Jogee (Appellant), and Ruddock (Appellant) v The Queen (Respondent) (Jamaica) [2016] UKSC 8; [2016] UKPC, has significantly change the law on “joint enterprise”. For the past 30 odd years people have been convicted of serious offences on the basis that, although they did not commit the offence themselves, they were with someone who did and that they, somehow, should have “foreseen” the risk of them doing so. If a jury was sure that the risk existed, the “accomplice”, or “secondary party” as the law calls them, was as guilty as was the principal. Convictions on this basis for murder have been common.

The full transcript is available via the following link

https://www.supremecourt.uk/cases/uksc-2015-0015.html

Now, the law has been changed. In effect the clock has been wound back to where it was before 1984. In order for an accomplice to be guilty of the same offence as the perpetrator the prosecution must now prove that the accomplice “intended” and/or “believed” that the perpetrator would commit that specific offence under consideration.

This decision opens the way to many convictions originally based upon “foresight of risk” being open to challenge.

What is required is a careful and highly experienced eye to look at the case to see whether or not the “exceptional” conditions that need to exist in fact do exist before the Court of Appeal can be asked to review the conviction with a view to quashing it.

Should you find yourself in a similar position and would like to know if your matter falls within the remit of a review then we have a specialist team of direct access barristers who can advise you.

For a free initial discussion without commitment then please contact us

0203 627 9580

[email protected]

Direct access to barristers: “No Surprises”

 

Will the barrister tell me what the fees are in advance?

When I am instructed on your case, I like to keep everything as simple as possible. The worst thing in the world is when a client turns to me and says, (after a piece of work has been done) “ oh, I wasn’t expecting you to do that.” Or “ I wasn’t expecting to have to pay for that service.”

I often find that the easiest way to run a case, and to organise a case for someone, is to break it down into manageable sections, and come to an agreement with them before any work is done, about what work is actually being done , and what that work will cost.

Organising in advance like that will mean that no one is surprised by any fees. So everything and all the work done is arranged good time prior to the work being done, and for a fixed fee that won’t catch you by surprise.