Will there be a rise in sexual assault and harassment compensation claims in 2018?

The past 12 months have been characterised in the legal world by a surge of new attention centering on the issue of sexual harassment, both in and out of the workplace, exposing it as a problem far wider spread than society initially believed it to be. The recent exposure of the rampant harassment culture in Hollywood has been responsible for bringing sexual harassment and assault to the forefront, leading to employers, organisations, groups and communities to review their current approaches to investigating such claims and taking necessary action. Here, the specialist team at LegalExpert.co.uk examine the changing perspectives on sexual harassment and assault, what this means for the legal industry and what steps are being taken to combat it.

The figures

Recent statistics have given some indication of just how common a problem sexual harassment is. It is not clear whether this apparent surge in sexual harassment claims is down to the actual rate of incident increasing, or just the number of people coming forward about their experiences, but they paint a troubling picture.

Statistics show that 57 per cent of women and 59 per cent of transgender people have been victims of sexual harassment, while 44 per cent of men report being subject to the same treatment. This means that the majority of the population has been affected by sexual harassment, and this information is only now coming to light.

Studies have also examined the lasting impact experienced by victims of sexual harassment, revealing some alarming facts. 44 per cent of people who reported being sexually harassed said they went on to suffer from depression as a result, while 41 per cent experienced feeling of social anxiety and one-third said their experiences of sexual harassment had made them suicidal. This gives some insight into the long-term reality faced by victims of sexual harassment, and the seriousness with which this issue must be addressed.

The backlash

A cultural movement of a magnitude rarely seen this decade set the ball rolling for the new wave of focus on sexual harassment. Tipped by the the exposure of allegations against movie moghul Harvey Weinstein by the New York Times late last year, the sexual harassment scandal has experienced a significant domino effect, and become a central focus in media and society. From the #TimesUp and #MeToo movements and Oprah Winfrey’s challenging speech at the Golden Globe Awards, this matter has gathered huge momentum, and seen many people coming forward to reveal themselves as victims of sexual harassment.

During her speech, Oprah Winfrey referred to Recy Taylor, a woman who had been raped and subsequently fought for justice during the time of Jim Crow. The way society was at that point meant that justice was never brought against the men who attached Recy Taylor and Oprah echoed the rising narrative that women had long feared speaking up due to the assumption that they would not be heard or believed. Oprah challenged this by saying four powerful words; ‘their time is up’ and it appears that this has resonated with many, leading to a transformation in the way this far-reaching issue is being advanced in 2018.

Figures published at the height of the #TimesUp movement suggest that as many as 81% of women have actually suffered from inappropriate behaviour by others. The issue of historical sexual abuse is also being brought out of the shadows. Official figures show that reports of historical sex abuse alleged to take place between the mid-1970s into the mid-1990s fell steadily over time, but these statistics are compiled from those victims who came forward, and the number of victims who have never revealed their abuse is unknown.

Societal impact

The issue of sexual harassment, and of many victims having suffered in silence for a long time, has struck a chord with society, and revolution is taking place. The exposure of accusations against high-profile figures has seen other people feel empowered to blow the whistle on their own aggressors, and to redefine the societal norms that have allowed sexual harassment to simmer below the surface for so long. One of the main focuses is towards employers reviewing the instance of sexual harassment in the workplace, and making improvements to company culture and policy to ensure that sexual harassment does not take place, and if it does, the victim has they support they deserve to ensure the matter is dealt with justly.

Legal impact

With awareness of sexual harassment at an all-time high, the public are experiencing a new wave of confidence in coming forward with allegations, safe in the knowledge that they will be listened to, supported and dealt with appropriately. It has already caused a huge surge in complaints of sexual harassment, and legal experts expect to see this continue. The Rape, Abuse & Incest National Network (RAINN) reported a 21 per cent increase in calls in the space of a week following the breakout of the Hollywood scandal, while the final quarter of 2017 saw a 31.5 per cent increase in reports of sexual harassment compared to the same period in 2016.

Legal firms, particularly those specialising in sexual crimes, should be fully prepared to see an increase in the number of sexual harassment cases coming their way, if it hasn’t already happened.

Issues of sexual harassment, both recent and historical, are likely to become a defining characteristic of the modern legal field, and legal experts should be prepared to deal with an influx of new enquiries, as more victims become aware of how to claim compensation for sexual abuse, assault or harrassment. In spite of the terrible nature of such crimes, the increase in victims coming forward is a positive indicator of society becoming more supportive of those affected by sexual harassment, and it is the responsibility of the legal profession to sustain this momentum, and help victims to feel that they made the right decision, for themselves and for others, by reporting their abuse. The longevity and success of the societal movement towards stamping out sexual harassment relies heavily on the right approach being taken by legal professionals at this crucial time.

Pre-nuptial agreements: how to protect your assets

prenup

Recent data from the Office of National Statistics highlights that the marriage rate for women over the age of 65 has increased by 56 per cent in recent years, suggesting that, for some, marriage is as much about financial security as it is about love.

One of the biggest financial concerns facing couples who decide to marry or remarry in later life is the extent to which their existing assets may become part of the new marriage’s matrimonial assets in the event that one party dies or files for divorce.

The decision, therefore, about whether assets should be kept separate or shared with a new partner, should be considered very carefully at the outset. One way of increasing the likelihood of keeping that pre-marital assets separate is through a pre-nuptial agreement.

Despite their somewhat transactional and unromantic reputation, pre-nuptial agreements are becoming increasingly popular in the UK and are often found to provide clarity.

The Supreme Court decision in Radmacher v Granatino [2010] UKSC 42 in October 2010 decided that the court will uphold the terms of a pre-nuptial agreement that is freely entered into by both parties with a full appreciation of its implications unless it is found to be unfair.

There is no doubt that getting married can bring with it a number of financial benefits. However, it is vital to obtain the correct advice from the start so that you are able to identify the key financial issues and avoid any difficulties that can arise from the marriage’s early demise.

To find out more, please contact Christian Abletshauser, Partner, Meadows Ryan, family solicitors (email christian@meadowsryan.com).

Are the British public risking their health to prop up the NHS?

One of the most divisive topics of the decade, the running of the NHS has been at the heart of political, financial and legal debate for many years. With a public so fiercely protective of the services provided, a growing population and creeping privatisation; a recent survey by UK clinical negligence solicitors Your Legal Friend took the temperature of NHS patients – to find how far the pressure on the NHS under health secretary Jeremy Hunt, is being felt.

Of the 2,000 people surveyed, 80% admitted that they would wait a month before chasing an expected follow up appointment and that 9% would wait until they were contacted instead of chasing up an appointment. 86% of those surveyed noted an awareness of the pressures the NHS is under, such as budget cuts or lack of investment. This worrying response suggests the British public are taking on the burden of the pressured NHS, compromising their own health in an attempt pull the cherished national service back from breaking point.

With a £1.4 billion compensation budget this year, it’s clear that the NHS anticipates the cost of reduced services; with the chances of more patients being subjected to mishandled test results, missed follow up appointments and other instances of neglect, borne out of lack of staff or poor organisation. Despite fierce loyalty to the service, the legal profession is preparing itself for increasing cases of negligence, as increasingly privatised services have none of the loyalty the NHS enjoys, whilst simultaneously, few private services have managed to build successful reputation with a public who cherishes the NHS.

The survey also found that almost half of 16-24 year olds would not see an alternative healthcare professional if their preferred one wasn’t available, while that number was closer to 30% for the over 55s. The younger cohort were much more likely to be impatient with NHS staff is pressures resulted in a poor standard of healthcare, with 46% of 16-24 year olds expressing this opinion. Just 35% of the over 55s surveyed said the same. Overall, 40% of those surveyed said they would be impatient with staff is NHS pressures resulted in a poor standard of care. 28% of those surveyed were assured that they wouldn’t complain about substandard care from the NHS.

The NHS receives 480 written complaints a day, according to NHS digital.

 

3 things clients consider when choosing their divorce lawyer

Family lawyers are always in need of not only more instructions, but also instructions of a higher value. In order to know how to attract and convert more customers, you need to know more about them. Possibly the most important thing lawyers can know about their customers is the factors affecting their choice when it comes to choosing their solicitor. This post looks at 5 things customers consider when choosing a divorce lawyer, and how you can easily take advantage of these insights to drive greater profitability.

Specialism

Consumers are more sophisticated than ever before. Where once they may have just used the one high street lawyer for all their legal needs, the internet allows customers to do a bit of research. For high-value or contentious divorces, the customer is likely not just to be looking for “a lawyer” but a lawyer with a divorce specialism, and even a specialism in their particular circumstances. Demonstrating your expertise, skill and past work on your website through strategic content can be an excellent way of demonstrating your specialism in that area. Furthermore, if you are a member of a professional organisation, or have won any awards or recognitions, you should put these trust icons on your website. These are called trust icons for a reason and can be very persuasive when it comes to customer conversion.

Reputation

Testimonials and reviews hold a lot of power when it comes to consumer decision making. After all, when was the last time you bought something online without checking out the reviews? You should aim to implement a process for gathering reviews and testimonials. For example, create a template email asking past clients to review your service on Google. Legal reviews can be difficult, because often clients will focus on the outcome – which may have been out of your control. Try to guide the client by asking them to focus on service. Were you easy to contact? Were you upfront about costs? These are things within your control and can help persuade potential customers that you are good to work with.

Branding

Your website is now your shopfront, and if that shopfront is looking tired, this can be dissuading to customers, particularly those that are facing a difficult divorce and want to feel secure. Having a well-designed, easy to use website that provides clear information about your services puts potential clients minds at ease. You should aim to not only describe your services, but your customer service too. This may be the first time the client has ever dealt with a lawyer, so they want to know what to expect. Similarly, keeping your blog and social channels regularly updated shows that you are active online, and are likely to respond promptly if the call or email you.

What comes after “divorce month”?

Family lawyers will be getting some much needed respite now that February has arrived. January is typically known as ‘divorce month’ where following the festive season, many couples decide to call it quits. Perhaps it is the ‘after Christmas’ mentality, getting a new start in the new year, or the financial strain of Christmas pushing couples apart. Regardless of the cause, divorce lawyers find themselves exceptionally busy at this time. But, what comes next? How can family lawyers continue to attract a large volume of work after the divorce dust has settled? We take some advice from expert lawyers.

Case studies

One of the best digital marketing strategies for family layers is to use anonymous case studies of cases they have previously worked on. Often potential clients will be looking for answers to very specific questions when it comes to family law, and having a case study that closely mirrors their situation on your website can help boost enquiries. Think about the different types of customers you want to attract, and common problems that they might face.

Testimonials and Reviews

Similar to case studies, when looking to instruct a family lawyer, many consumers will read testimonials and reviews of past clients. Where you have successfully resolved a case for a client, or helped them secure the results they we’re looking for. Now might be the time to focus on boosting those reviews. Send out a template email to your recent clients asking them to complete a Google review for your business. This will not only help with client trust, but can also help your organic search results too. If your firm has a decent sized  Facebook presence, you can also ask them to review you on Facebook, to reach a different audience.

If you are a firm that offers more than family law services, you might want to consider some follow up marketing campaigns. For example, those who have recently made enquiries about divorce services may now need to update their Will to reflect their change in circumstances.  Similarly, now that January is over, many people might start thinking about selling or buying a property, or even starting a business. Cross-selling your services is an excellent way to turn one-off transactions into relationships, and you should begin to think about the lifecycle of your customers and their legal needs if you do not already.

What warranties and indemnities must I give when selling a business?

Warranties and indemnities play an integral part in the process of selling a business. They provide the buyer with assurances about potential future outlay after the purchase has gone through, and help them deal with the unforeseen business-related issues that could arise.

In the case of a limited company, purchasers take over the existing and contingent liabilities when they buy the business, but some of these liabilities may not be obvious at the time of purchase.

For this reason, the buyer will seek warranties and/or indemnities to protect themselves, whereas, as a seller, you will want to minimise your exposure to the risk of future claims.

What are warranties and indemnities?

A warranty is a written statement provided to the purchaser to back up claims you have made about the business during the sales process. The buyer may not easily be able to verify your claims and statements when they sign the sale agreement, so a warranty provides them with some protection in this respect.

Indemnities, on the other hand, offer security for the buyer from known and specific circumstances that are defined within each indemnity – this makes you liable to cover the buyer’s losses without them having to make a claim against you.

Which warranties and indemnities might you need to provide?

Warranties

Your purchaser will request warranties covering commercial, legal and financial aspects of your business. The list of warranties can be extensive, and may include the following areas:

  • Legal disputes
  • Accounting and other financial information
  • Machinery and equipment
  • Employees and pensions
  • Insolvency
  • Intellectual property rights
  • Property and other assets
  • Contracts
  • Tax issues

When the buyer carries out their due diligence, you provide them with a range of information on which they base their decision to purchase, so they will naturally want a warranty that the information was accurate and up-to-date.

Similarly, if a piece of machinery on which the business relies is not in good condition, your buyer will require a warranty to this effect to prevent them incurring repair costs post-sale.

Indemnities

Your purchaser may require indemnities to cover certain situations, including:

  • Ongoing legal disputes with customers or clients
  • Existing employee disputes/tribunals
  • Litigation regarding a product
  • Tax liabilities

You will want to limit the scope and extent of indemnities where possible, and ensure they relate to specific instances to reduce your potential liability.

Warranties and indemnities are essentially a method of allocating risk in the sale/purchase process. They mitigate the risk for buyers that you have misrepresented your business in some way, but by disclosing information surrounding a warranty you can speed up the sale process whilst also limiting the risk of a future claim.

Jeff Barber is a partner at Selling My Business he specialises in business disposals and acquisitions and has over 30 years of experience.

What is the law regarding company director redundancy?

When determining a company director’s eligibility to claim redundancy, it is important to consider a number of factors based around their general working relationship with the company.

When a limited company is liquidated, the appointed insolvency practitioner will seek to establish whether a director is also an employee of their company, in which case they may be able to claim redundancy and other statutory payments.

So what criteria must be met by a director in this respect?

A written, oral or implied employment contract

If a written contract of employment is in place, the process of establishing a director’s status as an employee may be more straightforward. Lack of a written employment contract does not necessarily mean they cannot claim redundancy, however, as some directors work legitimately as employees under implied or oral contracts.

If a regular salary is received by the director through the PAYE system, and others have made the assumption that they work under a contract of employment, this may be sufficient to persuade the appointed liquidator of the director’s employee status.

The situation can become more complex, however, if the director also holds a controlling interest in the company, but again, this does not completely rule out the possibility of being classed as an employee and therefore eligible for redundancy.

Their role within the company and working hours

Directors need to work for the company in a capacity that is more than advisory, for a minimum of 16 hours per week. Their role should be practical and identifiable in the same way as a member of staff.

Length of time the company has been incorporated

The company must have been incorporated for a minimum of two full consecutive years prior to liquidation, before its directors can become eligible to claim redundancy.

Claims for redundancy pay and other entitlements

Up to £30,000 of redundancy pay is tax-free. Director/employees can also claim other statutory payments including unpaid wages, arrears of holiday pay, pay in lieu of notice, and unpaid pension contributions.

As their business has gone into liquidation, it is likely that the claim will be paid from the National Insurance Fund (NIF) rather than from assets realised by the liquidator. Claims are made via the Redundancy Payments Service (RPS), and generally take up to 12 weeks to be paid.

Eligible directors’ claims will be based on their age, length of service with the company, and final weekly wage, with government caps being placed on several aspects of the calculation, currently:

  • Weekly pay capped at £489
  • Length of service capped at 20 years
  • Maximum statutory redundancy pay capped at £14,670

It is not commonly known that directors are eligible for redundancy under certain conditions, but by claiming this and other statutory payments, it is possible to mitigate the potentially significant financial repercussions of loss of income through business liquidation.

Written by Gary Addison; a director at Redundancy Claim. Gary advises company directors on issues related to director redundancy, employee redundancy and statutory entitlements.

What is statute barred debt?

When a debt has been outstanding for some time, with no payments being made or communication from the debtor, the debt can become what is known as ‘statute barred.’ When debts are statute barred it means they’re no longer enforceable, and the debtor is not required by law to pay the amount outstanding.

The Limitation Act, 1980, places a time limit of six years on many outstanding unsecured debts, and 12 years on some mortgage arrears.  In England, Wales and Northern Ireland, the debt remains in existence but a creditor is unable to initiate court proceedings to recover it. In Scotland, a debt that is statute barred is ‘extinguished,’ which means that it no longer exists in law.

The rules regarding statute barring

England, Wales and Northern Ireland

A debt may be statute barred after six years if the debtor has not acknowledged the debt, either by writing to the company or making a repayment, although there can be exceptions.

  • The limitation period for mortgage arrears is 12 years, but six years for mortgage interest
  • Debts owed to HM Revenue and Customs have no limitation period
  • Personal injury claims generally have a limitation period of three years

Scotland

In Scotland, the majority of unsecured debts are statute barred after five years, with certain exceptions – these include the capital aspect of mortgage repayments, and some overpayments of benefits. Council tax debts are not statute barred until 20 years have passed.

When does the limitation period begin?

The limitation period on simple contract debts such as credit cards, store cards, and personal loans, begins on the date the creditor is able to take legal action to recover their money.

This is the date they have a ‘cause of action,’ and it should be stated in the original contract – possibly after two or three missed payments, for example. For other debts with no fixed repayment period, such as bank overdrafts, it can be more difficult to establish when the limitation period begins.

Criteria for statute barred debt

The following criteria are generally applied to establish whether unsecured debt, such as credit or store cards, is statute barred:

  • Six years have passed since a repayment was made, and
  • The debtor has not acknowledged that the debt exists, either by payment or correspondence with the creditor, and
  • The lender has not obtained a court judgment or decree in relation to that debt

Once a debt has been acknowledged by the debtor, the limitation period begins again from the date of the acknowledgement. The Limitations Act came into existence, not to encourage avoidance of debt, but to prevent creditors pursuing debtors through the courts after a long period of time has passed.

John Baird is a personal finance and insolvency expert from Scotland Debt Solutions. He specialises in advising people on how to manage their money and deal with their personal debt problems.

Do I need to contribute more to an IVA if my financial situation improves?

An Individual Voluntary Arrangement (IVA) is a flexible debt solution that generally lasts for five or six years. At the outset, a licensed insolvency practitioner (IP) assesses your income and essential living expenses, and negotiates an affordable sum to repay creditors based on your financial position at the time.

During the IVA term, however, it is possible that your situation could change. If after reassessment by the IP your financial position has improved, the terms of your IVA could also change and you may be expected to increase your payments to creditors.

Increasing IVA payments following a change in circumstances

Although the IP assesses your repayments on an annual basis as a matter of course, it is important to advise them immediately of any changes to your financial status. Failing to do so could be regarded as a breach of the IVA terms, and result in its failure.

The insolvency practitioner will decide whether or not an increase in your repayment amount is required, after re-evaluating your situation – changes could be the result of a new job, for example, a wage increase or windfall lump sum/inheritance.

Increased wages

If you have received a relatively small wage increase, the IP may feel that ongoing increases in the cost of living are likely to limit any financial benefit to you, and take no action. Should your pay increase be larger, however, and your living costs do not increase to the same degree, your IVA payments may be amended to reflect this – usually involving a rise of 50% of the extra pay.

Commission, bonuses and overtime

If you receive commission or bonuses, you should inform your insolvency practitioner within 14 days. If the increase from commission and bonuses represents 10% or more of your basic salary, you are generally required to pay 50% of the additional monies to your creditors.

Overtime payments are not usually guaranteed, and may not have been factored into the original IVA terms. The same principle applies in this instance – of informing your IP should you receive additional money from working overtime.

Windfall payments

Your IVA may include what is known as a ‘windfall clause.’ This means you must pay over lottery wins, inheritances, gifts, or other forms of windfall payment to the IVA. You should check the formal agreement to find out your particular obligations in this respect.

The IVA supervisor will always ensure your essential living costs are covered before calculating any amended repayments, and is able to reduce repayments if your financial situation declines again.

One of the benefits of paying more money into your IVA, however, is that you will be free of debt sooner. Depending on the amount, it could help you avoid having to take equity out of your property in year five, which is often a requirement in an IVA.

Written by Lawrence O’Hara; Head Advisor at Northern Ireland Debt Solutions  part of Begbies Traynor Group plc.  Lawrence has experience in debt problems, cash flow management and insolvency.

Can an accountant’s mistake lead to a professional negligence claim?

Although business owners and company directors are ultimately responsible for ensuring their compliance with HMRC, it is natural to want to seek compensation if they have suffered a material loss due to an accountant’s mistake.

Professional input to a business can be costly, and there is usually high expectation on the part of clients that their accountant’s advice and general services will be reliable. So what type of accountancy error could potentially lead to a claim for professional negligence?

Possible accountancy mistakes

Accounting errors that might result in a claim for professional negligence could include, but are not limited to:

  • Failing to meet filing and submission deadlines
  • Not advising a client about the changes in tax legislation
  • Failing to warn their client of potential risks connected with a tax mitigation scheme
  • Submitting materially inaccurate statutory accounts
  • Failing to identify and/or report instances of fraud
  • Not informing a client about their VAT obligations, such as when they should start paying VAT

These types of professional error can result in significant loss for clients. HMRC impose considerable fines and penalties for late filing and submission, for example, and for failing to register for VAT when the threshold has been met.

Considerations when making a claim

A number of factors should be considered when making a professional negligence claim against an accountant, including:

  • Whether or not they hold professional indemnity insurance: even if a claim is successful, the accountant may not be able to pay a court judgment if they are not insured
  • If the accountant has admitted their error: this provides the proof needed to make a claim in court
  • Whether the business is completely up-to-date with its HMRC liabilities: if the penalties and fines resulting from the error have not been paid, they cannot be reclaimed

Making a claim for professional negligence can be a complex and time-consuming process, so what factors need to be considered?

How a claim for professional negligence is made

If the accountant has admitted their mistake and they hold professional indemnity insurance, it may be a simple case of claiming against their insurance company. In some instances, however, an accountant may be unwilling to file a claim with their insurers, or simply deny having made an error. In this case, taking the accountant to court may be the only way to obtain compensation.

If the accountant is no longer practicing, or has gone out of business, it could still be possible to make a claim for professional negligence. Consideration should also be given to the time limit for professional negligence claims, which is generally six years from the date of negligence.

Written by David Tattersall from Handpicked Accountants – a website which helps business owners and company directors find a reputable and reliable accountant in their local area.