Ms H S, Basildon

Then you need to consider the reasons for the pay difference as the employer may have a defence if it can show a Material Factor Defence, which is not itself either directly or indirectly discriminatory.

Employers have succeeded in defending equal pay claims where pay differences were shown to be due to: –

• Past experience/performance;
• Seniority/length of service;
• Differences in the work;
• Geographical reasons;
• Mistake;
• Employees being at different points on the employer’s pay scale;
• Market forces;
• Pay protection (following a TUPE transfer or a past JES); or
• Historical reasons

However, in some cases they will have had to justify that their pay practices were a proportionate means of achieving a legitimate aim (objective Justification)

If having done this you think you aren’t receiving equal pay, then you need to know what to do next.

The process for raising an equal pay dispute is generally as follows:

• Informal discussions – You should first discuss with your employer if you think you aren’t receiving equal pay;
• Raising a grievance – If discussions fail or the issue is serious, you can follow your employer’s formal complaints procedure, where you can find this should be laid out in your employment contract/employment particulars. Typically, they will be in any staff handbook or on your employer’s intranet or a copy can be obtained from Human Resources.
• Next you can try Early Conciliation via ACAS which is commenced by submitting an ACAS Early Conciliation Notification. ACAS will then liaise with you and your employer to try to assist the parties in settling their dispute over a period of up to 6 weeks.
• If that does not resolve things you could Bring an Equal Pay Claim in the Employment Tribunal, or sometimes in the Civil Courts.

Equal Pay Claims can relate to sex-based differences in contractual terms during the term of the contract/employment e.g.:-

• Basic pay.
• Automatic pay progression.
• Paid holiday entitlement.
• Sick pay.
• Hours of work.
• Performance-related pay and benefits, overtime rates and allowances.
• Non-discretionary bonuses.
• Contractual benefits in kind such as company cars.
• Pension benefits and access to pension schemes.

You might also have a Sex Discrimination Claim relating to any non-contractual matters arising before, during or after the employment, e.g.: –

• Recruitment arrangements.
• Offers of employment.
• The terms of a job offer.
• Promotion, transfer and training.
• Discretionary pay rises.
• Discretionary bonuses.
• Other benefits.
• Dismissal and other detriment.

It is a simplification, but generally, Equal Pay Claims need to be brought within 6 months of when the employment ends in the Employment Tribunal (But beware of promotions/new contracts etc. which can cause an earlier limitation date)

OR within 6 years in the Civil Courts – IF they will hear the claim and, noting that it is more likely in the Courts that the losing party may have to pay a portion of the winning party’s legal fees, whereas in the Employment Tribunal typically each party bears their own costs.

Sex Discrimination Claims need to be brought within 3 months of the act complained of (or sometimes from the end of a continuing act) and when employment-related, can only be brought in the Employment Tribunal.

Note: – the limitation clock will still be running whilst any internal grievance may still be unresolved.

It is necessary to get an ACAS Early Conciliation Certificate Number (2 digits longer than the Notification Number) before filing most Employment Tribunal Claims – it has to be accurately recorded on the Tribunal Claim Form (ET1).

Doing ACAS Early Conciliation will usually briefly pause the limitation clock (extending the above Tribunal time limits).  Usually, you will have at least a calendar month from the Certificate Date to file a Tribunal Claim.

These types of claims are quite complex and technical and pretty fact-specific, so the importance of taking early legal advice cannot be underestimated.

Please contact our team to discuss your needs and circumstances further.

Writing a Will is an important milestone and must be done under certain conditions in order for the Will to be valid and legal.

These conditions include restrictions on age and require witnesses, but they also dictate that the person who has produced the Will – the testator – is of sound mind that has not been unduly influenced by another party.

If someone’s influence over the testator is found to have been intimidating, coercive or based on false information, then the Will could be invalid.

What follows is a scenario of a concerned family member and the legal steps they could take to resolve the situation.

Julie*’s story

Julie often helps her elderly mother with personal administration tasks. During one of these sessions, her mother happens to mention to Julie that she has recently had a new Will made with the help of her new friend, Rose.

She mentions that, as a thank you for supporting her through a difficult period (which Julie did not know about), she has left a significant amount of money to Rose in her new Will.

Rose didn’t think that Julie’s mother should tell her daughter, but her mother persisted.

Julie was confused because this action goes against her mother’s long-held wish for her entire estate to be split between Julie and her brother.

Upon further investigation, Julie finds that Rose has not known her mother long, but Rose was perfectly happy to accept the gift.

A legal lens

This may seem, on the face of it, like a perfectly normal situation that is unfortunate for Julie and her brother since it reduces their portions of their mother’s estate.

However, looking at some key warning signs, we can see that this situation might be far more insidious than it first appears. Julie might rightly be concerned about:

• Her mother’s age – Although still possessing capacity, Julie’s mother is at an advanced age which may make her more vulnerable to undue influence.
• Sudden changes – The Will was changed suddenly with little time for consideration or discussion with the affected parties.
• Isolation – Julie was unaware of her mother’s difficult period, but Rose knew about it, suggesting that her mother felt isolated from her otherwise close family.
• Secrecy – Rose didn’t want Julie or her family to know about the changes in the Will.
• Previous intentions – Julie’s mother had always intended to leave her estate to her two children, so it seems strange to change her mind in later life.
• Rose’s involvement – Rose does not have a long-established relationship with Julie’s mother and helped her to change her Will.
• Proportionality – While generous, Julie can see that her mother’s actions are not proportionate to the support Rose provided and far more complex than simply giving her a gift.

What should Julie do?

In order to protect her mother from undue influence, Julie may consider raising her concerns with her mother. She cannot yet challenge the Will since her mother is still alive.

However, undue influence can be difficult to navigate and prove, so Julie should certainly contact her solicitor to discuss next steps and how she can best protect her mother.

Please contact our Wills, Trusts and Probate team today for further advice on Wills and undue influence.

What is Biodiversity Net Gain?

Biodiversity Net Gain (BNG) is a planning and development initiative introduced by the Environment Act 2021 to help improve natural environments. The UK has seen a rapid decline in biodiversity and natural habitats over the past few decades.

In line with international objectives, BNG was established to tackle this issue.

Why do you need to consider BNG?

The BNG requirements which have been introduced aim to ensure that a property development will leave the surrounding natural environment in a measurably improved state than prior to the development.

From 12 February 2024 the requirement for all major developments to show a minimum 10 per cent net gain came into force.

From 2 April 2024 this minimum net gain requirement was extended to minor sites. Finally, from November 2025 the requirement will likely extend to nationally significant infrastructure projects. Local authorities can set higher requirements through their Local Plan and there are a few examples of local authorities requiring a 20 per cent net gain.

The net gain will need to be maintained for a period of 30 years.

What do you need to consider on your development?

When planning your development, you should consider:

• Are you able to reduce the negative impact on biodiversity at your development site by changing the development layout?
• Can steps be taken to enhance and improve (or restore) biodiversity at your development site?
• If this is not possible, you are able to off-set your BNG under the legislation by creating or improving an off-site habitat. We have seen examples where developers purchase an additional site as a biodiversity habitat where the appropriate net gain cannot be achieved on the development site itself. Alternatively, this may be on land you already own.
• Finally, there is an option to purchase statutory biodiversity credits from the government. However, you must be able to demonstrate that you are unable to achieve the required net gain at the development site or by off-setting on another site.

All planning applications will be required to set out the necessary biodiversity net gain information as a pre-planning condition. You should consult the services of a suitably qualified ecologist to assist.

The obligation to implement the net gain improvement plan will take the form of a planning condition or, in the case of larger developments, can be secured by way of S.106 Agreement.

To find out more about BNG and how we can advise you, contact our team.

Taking out a business loan can help business owners to unlock new growth opportunities, so it is unsurprisingly a popular option for entrepreneurs seeking commercial funding.

If the business is successful, it is also an excellent opportunity for lenders, who will earn interest on the loan, and have it repaid in full – but what happens when this isn’t the case?

In the case that the business does not meet it projected turnover and is unable to pay its loan, lenders will find themselves in a difficult position.

For this reason, many commercial banks and other lenders seek to protect their investment with a legally binding guarantee that the borrower will repay the loan, plus interest.

For smaller businesses, one of the more common ways of doing this is through a personal guarantee.

What is a personal guarantee?

This is an assurance from a business owner, partner or other executive that they will personally assume the debt if the business is no longer able to make its repayments.

While clearly a potential door to higher loans and more favourable terms, this can represent a significant risk to borrowers.

For business owners looking to secure a loan through a personal guarantee, it is first important to understand the two types and how they might impact personal finances.

Limited vs unlimited

There are two types of personal guarantees which may be used – limited and unlimited.

An unlimited guarantee, also known as an unconditional guarantee, means that the guarantor (the person giving the guarantee) is required to pay all amounts due to the lender.

As the name suggests, unlimited personal guarantees allow the lender to recover the entire loan amount, plus interest and legal fees, by whatever means possible, if the borrowing business defaults on its loan.

This means they can take money from a director or guarantor’s personal assets, such as savings or properties.

In contrast, a limited guarantee allows the lender to recover only a certain percentage of the loan from a given individual. This is commonly used when there is more than one director or guarantor covering the value of the loan.

Which is better?

It depends on the point of view!

For lenders, to obtain the best security, it is generally best to obtain an unlimited personal guarantee.

For borrowers, it is clearly best to negotiate a limit on the sum of money that the lender can recover under the personal guarantee, and this should be no more than the value of the loan.

In practice, it is usual a personal guarantee to be limited, but the interest and expenses will be payable in additional to the amount secured through the guarantee.

The costs associated with the preparation and completion a personal guarantee is likely to be in the region of £500 to £1,500 (plus VAT and disbursements).

For further advice on obtaining or using a personal guarantee, please contact our team of experts today.

In the UK, there are three different types of leave available for parents: maternity leave, paternity leave, and unpaid parental leave.

To support you in meeting your responsibilities as an employer, we will be looking at maternity leave and what you need to provide for staff.

Maternity leave allows employers to take time off work both during their pregnancy and following the birth of their child to recover and adapt to being a new parent.

Employers must ensure that they comply with their legal obligations and look to reclaim any Statutory Maternity Payments that they make.

This is especially important following the recent changes to redundancy protections for employees on maternity leave.

What are employees entitled to?

Employees who are pregnant can take up to 52 weeks of maternity leave. This is divided into two parts, with the first 26 weeks being ‘Ordinary Maternity Leave’ and the following 26 weeks classed as ‘Additional Maternity Leave’.

Unless the baby is born early, maternity leave can be taken up to 11 weeks before the expected week of childbirth.

Employees must take at least two weeks off after the birth, or four weeks if they work in a factory.

As well as this leave, pregnant employees are now entitled to enhanced protection from redundancy. This includes getting priority for alternative employment within the company.

Pregnant employees also face protection from discrimination under the 2010 Equality Act, as pregnancy is classed as a protected characteristic. This means that staff cannot be treated differently for being pregnant and going on maternity leave.

How much should staff be paid?

Whilst employers can opt to pay more than Statutory Maternity Pay (SMP) to their staff, you must ensure that you are paying at least the minimum.

SMP can be paid for up to 39 weeks, paid at the rate of:

• 90 per cent of their average weekly earnings (AWE) before tax for the first six weeks
• £184.03 or 90 per cent of their AWE (whichever is lower) for the remaining 33 weeks

Tax and National Insurance will be deducted from this.

You can usually reclaim 92 per cent your payments even if you pay over the statutory amount.  Employers who qualify for Small Employers’ Relief (that have paid £45,000 or less in Class 1 National Insurance – ignoring any reductions like Employment Allowance) may be able to recover more of their SMP.

Keeping correct records

To ensure compliance with HM Revenue & Customs (HMRC), you must keep records of maternity leave taken by staff.

This includes:

• Proof of pregnancy
• The date SMP began
• Your SMP payments and dates
• The SMP you have reclaimed
• Any weeks you did not pay and why

These records must be kept for 3 years following the end of the tax year they relate to. Doing this ensures tax compliance as well as legal compliance.

Ensuring employees are eligible

To be eligible for SMP, your employee must:

• Be on your payroll in the 15th week before the expected week of childbirth
• Provide you with notice
• Provide proof of pregnancy
• Have been employed by you for at least 26 weeks before the 15th week
• Earn at least £123 a week (gross) in an eight-week period

If your employee does not fit with the above, they may not qualify for SMP and you can refuse. Instead, they may be able to get Maternity Allowance.

To officially refuse, you must provide your employee with the SMP1 form within 28 days of their request for SMP or the birth.

If you are unsure whether your employee is entitled to maternity leave and SMP, it may be helpful to seek the advice of an employment law expert. They will be able to look at your employees’ contracts and help you reach a decision.

If you would like more advice on providing parental leave for your staff, get in touch with our team today.