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No Fault Divorce – It’s Finally Here!

The Divorce Dissolution and Separation Act was finally implemented on 6th April 2022.

So what’s changed?

1. Parties will no longer need to rely upon a fact to prove the marriage has irretrievably broken down (such as adultery, unreasonable behaviour or 2 years separation with the other’s consent). Hence reference to the new divorces being ‘no fault’;

2. It will no longer be possible for a respondent to contest the divorce, save for challenging the divorce for reasons such as jurisdiction, validity of marriage, fraud or procedural compliance;

3. Terminology has also changed. For example, a petitioner will now be known as an applicant and the decree absolute will now be known as a divorce order;

4. Time frames are slightly different. For example, the introduction of the requirement that an applicant (petitioner) must wait 20 weeks from the day the application (divorce petition) was issued before they can apply for the conditional order (decree nisi). This may impact upon how long a divorce may take and also impact upon when parties can file a financial order by consent or commence financial remedy proceedings;

5. Parties can now apply on a joint basis;

6. The seeking of a cost order appears to be discouraged, but not prohibited. Previously it was quite common for a petitioner to seek an order for costs against a respondent when a ‘fault’ based petition had been filed and such a claim was included in the petition itself rather than making a separate application.

Are there any similarities to the previous divorce legislation?

1. There is still only one ground for divorce, which is irretrievable breakdown of the marriage;

2. The same court fee of £593 is required to be paid (and for those who are eligible, you can still apply for fee remission);

3. Applications are still to be made via the court’s on-line portal;

4. The procedure is still similar i.e. issue of application (petition); where it is not a joint application – respondent to file acknowledgement of service; apply for conditional order (decree nisi) and then apply for divorce order (decree absolute);

5. The end result is still the same, a divorce order (decree absolute) dissolves the parties’ marriage;

6. The same financial orders and the same section 25 criteria is still applied in respect of the parties’ financial claims arising from the divorce.

We at Lanyon Bowdler are here to advise and assist you in respect of your divorce and issues arising from the same (such as negotiating a financial settlement or resolving the arrangements for the children). We offer a discounted fixed fee hour appointment where many of these issues can be discussed at the outset. For more details please contact one of our offices via telephone or via email.

The Digitalisation of Lasting Powers of Attorney (LPAs) - ‘safer, simpler and fit for the future’

What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a vital legal document which appoints a person of trust who will make decisions on your behalf (known as an attorney), either now, should you choose to or when mental capacity is lost. When appointed, the attorneys will be able to make decisions regarding property, financial or health affairs, at a time in the future when you may no longer be able to make those decisions yourself.

What are the proposed changes?
The Ministry of Justice (MoJ) in collaboration with the Office of the Public Guardian (OPG) last year published a consultation on plans for how LPAs can be modernised, streamlined and digitalised.

In modernising LPAs it is considered that digital LPAs may be more useful than the current paper based LPAs. The modernisation of LPAs aims to improve the process of making and registering an LPA by increasing safeguards, improving access and ensuring the OPG is working sustainably while keeping LPAs as affordable as possible.

Pros of LPAs becoming digitalised

  • It could make it easier for those that are digitally savvy to make an LPA. Online tools will make it easier for attorneys to contact financial institutions and healthcare providers once the LPAs are registered.
  • It could become cheaper to make an LPA if the process is simplified and costs are cut down due to less paper, equipment, storage and staff.
  • Currently it is taking up to 20 weeks for LPAs to be registered once they have been signed. If LPAs are digitalised this could cut the registration time from up to 20 weeks to as little as two weeks. The current long time frame for registration can delay important decisions being made so any reduction in this would be most welcomed.

Drawbacks of LPAs becoming digitalised

  • It could be easier for mistakes to be made online which could be problematic if the mistakes are not corrected. Currently mistakes in paper based LPAs can cause long delays and it is expected this would cause similar delays for online applications.
  • There could be more opportunity for fraud and abuse of power if LPAs are digital, especially for those clients who are vulnerable or elderly and do not have access to computers or the internet. The Law Society in particular are concerned that there should be sufficient safeguards in place to protect those most at risk.
  • LPAs are posted by both the OPG and can be posted to attorneys and replacement attorneys for signature. There is clearly a risk therefore of LPAs being lost in the postal system which is both longwinded and can cause unnecessary delays.

The Private Client Team at Lanyon Bowdler will be here to assist with LPAs both now and in the future and you should always consult with someone experienced in LPAs to ensure they are drafted correctly and meet your needs.

Donna Ockenden: ‘The Independent Review of Maternity Services at The Shrewsbury and Telford Hospital NHS Trust’

Wednesday 30 March 2022 marks the publication of Donna Ockenden’s final independent review into maternity services at The Shrewsbury and Telford Hospital NHS Trust. The long-awaited report follows on from the first report, ‘Emerging Findings and Recommendations from the Independent Review of Maternity Services at The Shrewsbury and Telford Hospital NHS Trust’ which was published in December 2020.

The first report observed important emerging themes that concerns were not appropriately escalated, leading to a direct impact on the safety and quality of care provided to women and their babies. The aim of the first report was to focus on immediate improvements for the Trust and the wider maternity system across England.

The final report which was published today has reviewed the maternity care received by 1,486 different families, involving 1,592 clinical incidents. Cases span from as early as 1973, with the latest in 2020. As such, it is the largest ever number of clinical reviews conducted as part of an inquiry relating to a single service in the history of the NHS.

The report highlights woefully poor practice over a period of decades, to include a reluctance to carry out caesarean sections, a failure to train staff properly to read CTG (heart monitoring) traces; inadequate team working, a refusal to follow national guidelines, an inability to learn from mistakes and a culture of cover-up. It has been identified that there are 60 areas where improvements could be made at The Shrewsbury and Telford Hospital NHS Trust.

Harrowingly, the report identifies 201 cases of still birth and neonatal deaths that could have been avoided if better care had been provided and 9 avoidable maternal deaths. Other babies were starved of oxygen and left with life-changing disabilities. It was found that false reassurances were given to families about the maternity services despite repeated concerns being raised.

Within the report, Donna Ockenden addresses the Secretary of State for Health and Social Care and states that the review is about an NHS maternity service that failed – “it failed to investigate, failed to learn and failed to improve and therefore often failed to safeguard mothers and their babies at one of the most important times in their lives”.

Whilst the report says the review team are encouraged by staff feedback that following the publication of the first report in December 2020 there does seem to have been a recent improvement in maternity services at the Trust, even now early in 2022 there remains concern that NHS maternity services are still failing to adequately address and learn lessons from serious maternity events.

Commenting on today’s publication, the Birth Trauma Association’s CEO, Dr Kim Thomas, said:

“The Ockenden’s findings are so shocking that they must provide an impetus for change. The lives of babies and mothers have been lost as a result of neglectful care over a period of decades. The fact that it has taken this long to investigate is in itself highly worrying. It is now time for an overhaul of maternity care that priorities the safety and wellbeing of mothers and babies”.

We have profound sympathy for all of the families who have suffered indescribable loss and harm as a result of maternity failings at The Shrewsbury and Telford Hospital NHS Trust and we hope that this report will herald the improvements in maternity care that they have been asking for.

New Mobile Phone Law has Come into Force

If you are reading this whilst driving or sat at the traffic lights, then you are now breaking the law!

A legal loophole that previously allowed drivers taking a photo, scrolling through the playlist or playing a game whilst behind the wheel to escape punishment, has now been closed.

Anyone convicted of using a handheld mobile whilst driving, faces a punishment of 6 points on their licence and a fine of up to £1,000.

The only exception allows people to make contactless payments at drive through restaurants, so long as the vehicle is stationary.

People can still use the phone ‘hands free’ to make Bluetooth calls or as a Sat Nav, if it is properly set up before driving.

The full list of what is and what is not allowed is set out here: https://www.gov.uk/using-mobile-phones-when-driving-the-law

If convicted of this offence, anyone within the first two years of passing their test would face having their licence revoked and having to sit their driving test again.

For further advice please contact Stephen Scully on 01743 280232 or stephen.scully@lblaw.co.uk.

Dementia and Decision-making

Dementia is a term used to describe a range of symptoms associated with a progressive deterioration of cognitive functioning. These symptoms, including loss of memory, logical reasoning and attention, together with confusion and communication difficulties, can have a severely detrimental effect on the life of the sufferer and those who love and care for them.

There are several types of dementia; including Alzheimer's disease (which is the most common form), vascular dementia, frontotemporal dementia and dementia with Lewy bodies, it is also possible to suffer with more than one type of dementia.

The Alzheimer’s Society have recently published (December 2021) some quite shocking statistics:

  • It is estimated that there are currently around 900,000 people with dementia in the UK and this is expected to rise to 1.6 million by 2040.
  • 209,600 people will develop dementia this year, that’s one every three minutes.
  • One in six people over the age of 80 have dementia.
  • 70 per cent of people in care homes have dementia or severe memory problems.
  • There are over 42,000 people under 65 with dementia in the UK.
  • Dementia is one of the main causes of disability later in life, ahead of cancer, cardiovascular disease and stroke.

As dementia progresses, it is sadly the case that many individuals lose mental capacity to make their own decisions regarding particular aspects of their life, such as managing financial affairs and health and social care.

It is important to note that a person’s mental capacity refers specifically to their capacity to make a particular decision at the time it needs to be made. It is therefore not applicable to simply state that someone has ‘lost mental capacity’, as capacity must be assessed on a decision specific and ongoing basis.

The Mental Capacity Act (MCA) 2005, which came into force on 1 October 2007, provides the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves.

The MCA 2005 is based on five key Statutory Principles:

Principle one - A person must be assumed to have capacity to make a particular decision unless it is established that they do not. This means that a diagnosis of dementia does not automatically preclude someone from making their own decisions.

Principle two - A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success.

Dementia may affect an individual’s ability to make some decisions, however, they should receive support to make as many decisions as they can. The kind of support required will depend on personal circumstances, the type of decision to be made and the time available to make the decision. Those supporting the individual should try to find the most helpful way to communicate, perhaps explaining the information in a different way or breaking it down into smaller chunks.

Principle three - A person who makes a decision that others think is unwise should not automatically be labelled as lacking capacity to make a decision.

Principle four - An act done or decision made on behalf of someone who lacks capacity must be done, or made, in their best interests.

Principle five - Any act done, or any decision made on behalf of someone who lacks capacity, should be an option that is least restrictive of their basic rights and freedoms – as long as it is still in their best interests.

A person with dementia may have capacity to make some decisions, such as what to wear or what to eat, but may lack capacity to make more complex decisions, such as managing their financial affairs.

If an individual lacks capacity to manage their financial affairs, then someone else will need to make these decisions for them, however, they can only do so if they have the required legal authority. Despite popular belief, an individual’s ‘next of kin’ does not automatically acquire this legal authority.

With the required mental capacity, an individual can make and register Lasting Powers of Attorney for property and financial affairs and also health & welfare, appointing attorneys to act on their behalf, should there be a need to do so in the future.

However, in the event that an individual with dementia loses capacity to make some decisions relating to their financial affairs, as assessed by a medical professional, then they will be unable to make a Lasting Power of Attorney and it therefore becomes extremely difficult to help them manage their finances. In these circumstances, the required legal authority to act on their behalf comes from being appointed as their deputy via a deputyship application to the Court of Protection.

Family members or close friends can be appointed as ‘lay deputies’ or if there is no-one suitable or able to act then a ’professional Deputy’ can be appointed.

An appointed deputy has wide ranging duties and responsibilities, including reporting requirements, and a deputy must continue to follow the five key principles as set out in the MCA 2005. If making decisions on behalf of the incapacitated person (referred to as ‘P’) the deputy must have particular regard to principles four and five i.e. they must always act in P’s best interests and choose the least restrictive option where possible.

The requirement to apply for a deputyship for someone with dementia can often indicate that the people caring for them have reached a crisis point, and/or there has been a deterioration in their loved one’s mental health. Consequently this can be an extremely stressful and emotionally challenging time for all involved.

The Court of Protection Team at Lanyon Bowdler has a wealth of experience of dealing with Court of Protection applications, advising deputies regarding their roles and responsibilities, and we are also able to offer a professional deputyship service.

We understand how complex and overwhelming the whole deputyship application process can be and so if any of the issues raised above are relevant to you or someone you care for then please do not hesitate to get in touch with our Court of Protection Team for further information, advice and support.

Coercive Control

Many people contact the Court of Protection team at Lanyon Bowdler at a time when they are most vulnerable. We often receive calls from upset and distressed sons and daughters who are calling regarding their mother or father who lack capacity and are facing difficult decisions regarding where their family members are going to live and who will take care of them. Sometimes we receive calls and are told that an incapacitated person (“P”) is currently living with a family member and the caller fears they are being taken advantage of.

What can you do in situations where someone may be subject to coercive control?

The Mental Capacity Act 2005 (MCA) aims to ensure that people who have an impairment of the mind or brain are supported to make their own decisions wherever possible. The MCA only applies where a person lacks capacity as defined in the MCA – i.e. ‘if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’. This means that capacity is decision and issue specific: someone may have capacity to create a Will but lack capacity regarding their property and finances. An impairment could be the result of a brain injury, dementia or other injuries or conditions.

It is important to firstly ascertain if the person lacks capacity with regard to the specific issue. This is determined by a capacity assessment which is completed by a GP or other health practitioner. However, it is noted in the MCA that an unwise decision is not an incapacious decision, so first it must be asked whether there has been coercion or simply has an unwise decision been made by someone with capacity.

The recent case of Re BU [2021] EWCOP 54 dealt with this question. The case concerned BU, a 70 year-old woman with a diagnosis of a global cognitive impairment. BU had an investment portfolio estimated to be worth £1.3 million. She had formed a relationship with NC; a man nearly 20 years her junior who had a history of criminal convictions including offences relating to fraud and theft and notably a nine year custodial sentence for an offence of dishonesty and blackmail. BU had a close relationship with her daughters and elderly father. Her marriage to her daughters’ father broke down when they were young and she had not formed any meaningful relationships with a man until she met NC. The relationship BU had with NC had a significant impact on the deterioration of the close relationships with her family and concerns were raised by the family headed by her daughter WU. The concerns were raised following expensive purchases such as vehicles, a caravan and various property, liquidation of investments and the creation of a new Will seemingly driven by NC’s coercive behaviour. BU’s family sought; a declaration from the Court of Protection that BU lacked capacity to make decisions about her contact with others, including NC, an Order preventing NC from having further contact with BU and an Order preventing BU and NC entering into a Civil Partnership or Marriage. Mrs Justice Roberts in the case stated:

“There is no evidence at all to suggest that she presently wishes to reduce or eliminate her contact with him (indeed, the evidence points to the contrary). I consider nevertheless that she lacks capacity generally in relation to her contact with NC. The expert evidence, which I accept, is clear. Because of the corrosive and coercive nature of the control which I find NC to have exercised over her, BU has been deprived of autonomous decision-making in this context”…

“Put simply, she no longer has the ability to exercise her individual free will in the context of any ongoing relationship with NC. The degenerative vascular changes in her brain have resulted in a global cognitive impairment which has impacted upon her ability to weigh and use information to the extent that a person with full capacity could”.

Mrs Justice Roberts concluded that she would be making a final order prohibiting any contact between BU and NC. The current injunction prohibiting contact which had been breached numerous times by NC would be replaced with a final order which would include a penal notice meaning that if NC breached the terms of the Order he could be found in contempt of court and face a period of imprisonment. Although Mrs Justice Roberts stated it would be a final order she advised she would be open for the order to be reviewed should circumstances change.

Given Mrs Justice Roberts’ conclusions about BU’s capacity it fell to her to make determinations about BU’s best interests. In all decisions before the Court regarding P, the Court will only intervene if necessary and any intervention must be reasonable and proportionate and in P’s best interests. In a case of coercive control it will be asked whether it is in P’s best interests to limit contact or whether they should be removed from a living situation in which they are subjected to the influences of the person exhibiting coercive control. If P is subject to coercive and controlling behaviour an injunction can be sought to limit or cease contact between the two parties.

If you have concerns that someone you know may lack capacity and is being subjected to coercive or controlling behaviour and would like more information please contact a member of our Court of Protection team.

Q&A: Focus on Warranty and Indemnity Insurance for SMEs

Warranty and Indemnity Insurance, commonly referred to as W&I insurance, is often used in private mergers and acquisitions (M&A) to cover financial loss, that may arise from a breach of the seller’s warranties in a sale purchase agreement. Historically, W&I Insurance was a niche market and targeted at private equity investors. However, recent market trends are seeing it used in a range of company sales, including SMEs, to ease lengthy and costly negotiations, and give both the buyer and seller a positive outcome.

What are the benefits of W&I Insurance? Negotiation of warranties, disclosure and seller limitations can be a costly and sometimes insurmountable process. The key benefits of W&I Insurance for the seller include the possibility to cap its liability at nil, or at least a lower amount than would otherwise have been possible, enabling a cleaner exit. It is also considered a favourable alternative to price reductions, specific indemnities with escrow arrangements or parent guarantees. For the buyer, it can claim directly against the insurer and can potentially negotiate an enhanced scope and duration of protection. It is also a helpful alternative to a confrontational negotiation of warranties if the parties need to maintain a commercial relationship in the future.

What are the disadvantages of W&I Insurance? The insurance cover offered tends to exclude the following: known or disclosed facts, losses arising from fraud and certain specific liabilities such as money laundering and environmental. There is also the timing issue of involving the insurer early on in the transaction followed by the co-ordination of an additional third party in the due diligence process and review of the sale purchase agreement. Finally, the cost of the insurance premium will need to be paid. Currently, the premium seems to be around 1 to 2% of the maximum liability covered by the insurance policy.

Who tends to arrange W&I Insurance cover? W&I insurance is predominantly used on share deals and arranged by the buyer However, this does not mean that the buyers always pick up the price of the premium, which is a point of negotiation for parties to the transaction.

How common is W&I Insurance? The use of W&I Insurance has grown considerably for the last five years, particularly in M&A deals involving SMEs and those not involving any private equity party. The growing consensus of city firms is that the use of W&I Insurance is around 20% in private M&A deals and 40% in private equity deals.

So what could be fuelling this increased activity? A key reason has to be cost of the W&I Insurance cover. The number of insurers offering W&I insurance has increased, driving competition between insurers and therefore making the policies more affordable and efficient, with the scope of policies offering more comprehensive and wider cover.

What is the future of W&I Insurance in M&A deals? It seems clear that W&I insurance is behind some fundamental developments in deal structure. Its increased use will inevitably reduce the use of escrows and create more nil seller recourse structures. However, as more policies are created, there is a following trend of increased W&I claims which may in turn raise the premium rates of W&I Insurance reducing its appeal.

If you would be interested in discussing the benefits of W&I Insurance for your company sale then please feel free to contact the Commercial & Corporate department at Lanyon Bowdler.

Protecting Financial Assistance to Family Members Upon Divorce

Very often we encounter situations in which family members wish to help a couple purchase a property together, usually with a contribution towards the deposit. In today’s property market that can be a very welcome boost for getting onto the property ladder and parents or grandparents can gain a lot of pleasure from seeing their younger relative and his/her spouse settled with fewer financial concerns.

However, this enjoyment can quickly turn sour if the child’s marriage breaks down. On many occasions we are faced with a situation where a client says their parent provided money to purchase the marital home and we have to deliver the bad news that, unless something was done at the time to protect that sum of money for the parent, it may well be regarded as having been a gift. As such, it will be absorbed into the marital assets and could be awarded in whole or in part to the other spouse.

The basic position is that, within divorce proceedings, the Court must take all the marital assets into account and divide them so as to produce a fair result for the couple, taking account of various factors such as the existence of children, each spouse’s financial needs and resources, their age, health, etc.

Note that the law does not require the Court to consider fairness to the parents etc who might have provided part of those assets.

For that reason, if you are considering helping out your married child financially it is very sensible to take legal advice to ensure your circumstances are protected as far as possible.

Matters to consider are:

  • Should your name go onto the title deeds to reflect the funds you contributed?
  • Maybe you could have a charge against the property, noted on the title documents at the Land Registry?
  • If the money is regarded as a loan, should a formal loan agreement be drawn up setting out the repayment terms, interest, etc.
  • Perhaps your child and his/her spouse could agree to enter into a pre-nuptial / post-nuptial agreement to try to ensure that your child retains your funds if the marriage breaks down?
  • If you still wish to provide the money on an informal basis, how will this be recorded by the solicitors dealing with the purchase and to what extent will your name and the arrangements be referred to in their file and on bank documents?

All of these options will have important ramifications (such as tax and inheritance) and you should take legal advice in good time before providing the funds.

However, a little thought and investment at this stage could protect you against potentially having to intervene in divorce proceedings further down the line, at considerable cost, risk and disruption to yourself and the wider family.

No Fault Divorces

The suspense around when so-called “No Fault” divorces were due to begin has been almost as bad as the final episode of “Line of Duty” – with perhaps less risk of internet spoilers...

However – fanfare - it is now official that they will start on 6 April 2022.

This marks perhaps the most significant change in family law for almost half a century and will require us all to get to grips with a raft of new terminology, forms and procedures.

For couples who have hit difficulties in their marriage that they don’t think can be repaired, it also represents a really positive development in moving away from the “blame culture”.

Gone are the allegations of unreasonable behaviour, always so difficult to come up with when two people felt it had all just “fizzled out” and they wanted to stay on good terms for the sake of the children or the wider family.

No more allegations of adultery, which often led to conflict, needless worry, confusion and extra costs.

No more need to prove that you had lived apart for a certain period of time, or endured a totally artificial lifestyle under one roof, where one person could not cook for the other (despite there being leftovers), or do the other’s laundry (not ideal in these eco-conscious times when running a half-empty machine is not something a decent citizen does!), without risking the court rejecting their argument they had lived separate lives.

Instead the applicant will simply have to file a document saying the marriage has broken down irretrievably and the other person will not be able to defend it, thus removing a favourite tactic of abusive spouses.

Indeed, if they wish, the couple can even file a joint application for divorce, which has never been permitted before.

They will then be required to wait 20 weeks before they can apply for their Conditional Order (previously known as a Decree Nisi), but can use the time well to try to resolve financial and children matters.

Six weeks after the Conditional Order they can apply for a Final Order (which used to be called a Decree Absolute) which dissolves the marriage.

As such, the later part of the process remains familiar but it is hoped that the initial stages, which used to cause so much delay and potential upset at a time when the parties were sometimes having to deal with all the other new challenges a separation could bring, will be a really welcome breath of fresh air.

ACAS Bereavement

On 16 February 2022, Acas published new guidance with regards to bereavement leave and pay (replacing the previous guidance). This guidance aims to help employers understand the time off and pay that a bereaved employee may be entitled to and to provide advice regarding bereavement in the workplace on the whole.

During an employee’s working life, it is expected that they will experience the death of someone close to them at some point. Therefore, employers need to know what to do in these circumstances. The updated Acas guidance covers bereavements that may be experienced by an employee following the death of a dependant, a child, stillbirth, miscarriage or a colleague, as well as deaths outside of these categories.

Within the guidance, employers are advised to recognise that grief affects everyone differently and that tailored support may be necessary, both at the time of the bereavement and after the employee has returned to work. The guidance also includes a section aimed at employees which provides advice on what they should do after a death. Employers need to be aware of this and be able to direct employees to it if necessary.

Under the new guidance, employers are advised not to discriminate against bereaved employees when considering time off and support provided, and in line with this, the guidance recommends that employers have a workplace bereavement policy to cover time off and pay. This is not new advice, but further advice has been given as to what should be included within the policy, this being:

  • When the leave for bereavement could apply;
  • How much leave will be provided; and
  • The amount of pay for the leave (if applicable).

One of the biggest changes to the guidance is that anyone who is classed as an ‘employee’ has the right to time off if: a) a dependant dies; or b) their child is stillborn or dies under the age of 18. The definition of a dependant has been expanded to include: a) spouse, partner or civil partner; b) parent; c) child (under 18); d) a person who lives in their household (not tenants, lodgers or employees); e) a person who would rely on them for help in the event of an accident, illness or injury; or f) a person who relies on them to make care arrangements. Although there is a right to time off in these circumstances, there is no right to paid leave – this can be paid at the discretion of the employer.

In circumstances where there is no legal right to time off and the employer does not offer bereavement leave, the new guidance recommends that employers consider the use of annual leave, sick leave or unpaid leave as alternatives. It is advised that discussions are held between the employer and employee to discuss:

  • What type of bereavement leave is available;
  • How much time off is available; and
  • Whether the leave will be paid or unpaid.

If you would like any advice on the updated guidance, please do contact the employment team to arrange an appointment.

Agricultural Minimum Wage 2022

The Agricultural Advisory Panel for Wales advises Welsh Ministers on the Agricultural Minimum Wage arrangements for agricultural, horticultural and forestry workers in Wales, and the Senedd usually passes a new Order each year setting new pay rates.

However, no Agricultural Wages Order was made in 2021, so the current pay rates have been in effect since April 2020 – but, where applicable, subject to increases in accordance with the National Minimum Wage rates effective from April 2021.

The Panel has proposed changes to the current Agricultural Minimum Wage arrangements to apply from April 2022.

The proposals have still yet to be approved, but are as follows:

1. Rates of Pay

Hand in hand with the proposed new pay rates is a new grading structure, which the Panel considers will make it easier to define an agricultural worker’s appropriate grade.

The proposed new grades are explained here, at point 1, whilst the equivalent qualifications referred to in the grade descriptions are set out at point 2.

The proposed new pay rates are as follows:

Grade Rate per hour

A1 – Agricultural Development Worker (16-17 years) £4.81

A2 – Agricultural Development Worker (18-20 years) £6.83

A3 – Agricultural Development Worker (21-22 years) £9.18

A4 – Agricultural Development Worker (23 years+) £9.50

B1 – Agricultural Worker (16-17 years) £4.81

B2 – Agricultural Worker (18-20 years) £6.83

B3 – Agricultural Worker (21-22 years) £9.18

B4 – Agricultural Worker (23 years+) £9.79

C – Agricultural Advanced Worker £10.08

D – Senior Agricultural Worker £11.06

E – Agricultural Manager £12.13

Apprentice Year 1 £4.81

Apprentice Year 2 (aged 16- 17) £4.81

Apprentice Year 2 (aged 18- 20) £6.83

Apprentice Year 2 (aged 21- 22) £9.18

Apprentice Year 2 (aged 23+) £9.50

Other Allowances:

Dog Allowance £8.17 Per Dog Per Week

Night Time Work Allowance £1.55 Per Hour of Night Work

Birth Adoption Allowance £64.29 For Each Child

2. Other Proposed Changes

The current Agricultural Wages Order makes provision for rest breaks of not less than 30 minutes on any day that a worker aged 18 or older works more than 5½ hours (subject to exceptions).

The Panel considers it appropriate in the interests of clarity that provisions should be included relating to daily rest for workers under 18 and in relation to daily rest and weekly rest which replicate the provisions of the Working Time Regulations 1998 – although these are not new rights, as absent any equal or better entitlements of workers under an Agricultural Wages Order, the provisions of the Working Time Regulations must be applied.

For further information and advice in relation to employment law specific to the agricultural sector in Wales, please contact me or another member of the employment team.

For details of increases in the National Minimum Wage and increases to other statutory payments and limits, also to come into effect this April, please see our blog here.

Increases to Statutory Payments and Limits

National Minimum Wage

From 1 April 2022, the National Living Wage increased from £8.91 to £9.50 an hour.

National Minimum Wage rates for those under the age of 23 and first year apprentices are to increase as follows:

  • Workers aged 21 to 22: £9.18 (up from £8.36)
  • Workers aged 18 to 20: £6.83 (up from £6.56)
  • Workers aged 16 to 17: £4.81 (up from £4.62)
  • Apprentices in their first year: £4.81 (up from £4.30)

The accommodation offset rate will increase from £8.36 to £8.70.

Agricultural Minimum Wage in Wales

See our separate blog on the Agricultural Wages (Wales) Order 2022 here.

Family-related payments

From 11 April, Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay, Statutory Shared Parental Pay and Statutory Parental Bereavement Pay will increase from £151.97 per week to £156.66 (or, if lower, 90% of an employee’s average weekly earnings).

Statutory Sick Pay (SSP)

From 11 April, SSP increased from £96.35 to £99.35 per week.

Compensation limits

For dismissals with an effective date of termination on or after 6 April, the cap on the value of a week’s pay for certain statutory purposes, such as calculating statutory redundancy pay and basic awards of compensation, will increase from £544.00 to £571.00.

The maximum compensatory award for unfair dismissals will increase from the higher of 52 weeks’ normal pay and £89,493.00 to the higher of 52 weeks’ normal pay and £93,878.00.

Statutory guarantee pay

During periods of lay-off or short-time working an employee may be entitled to a statutory guarantee payment, which is calculated by multiplying the number of normal working hours on the workless day by the guaranteed hourly rate. With effect from 6 April, the maximum guarantee payment will increase to £31.00 per day (subject to a maximum of 5 days or £155 in any 3 months) from £30.00 per day.

For further details relating to the law around and relating to the above payments and limits, please contact me or a member of the employment team.

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