Fire and rehire or, as it is more formally termed, dismissal and re-engagement, is controversial and currently a focus for much debate. The approach is certainly not a new one, and much as with zero hours contracts a year or two back, has become the target of considerable trade union ire.

So, what exactly is fire and rehire? As with any contract, the terms of an employment contract cannot be unilaterally altered by one of the contracting parties. Therefore, when an employer seeks to change terms to an employee’s detriment – for example, to replace an expensive final salary pension scheme with a cheaper defined contribution scheme, or perhaps to reduce working hours and/or pay – and the employee will not agree, the employer will sometimes impose the change by terminating the contract (“fire”) and offering to re-engage on a new one which reflects the employer’s preferred terms (“rehire”).

The practice has been in the news again in recent months. There was something of an increase in fire and rehire amongst employers seeking to limit the financial stresses of the pandemic; and there then followed an unsuccessful attempt last year to pass legislation outlawing the practice.

Acas then published guidance in November to help employers explore all other options before considering fire and rehire, at the government’s request.

And within the last few weeks, there have been headlines after the High Court granted an injunction to prevent Tesco from dismissing and re-engaging a number of their employees. At a glance, readers of newspaper reports might be forgiven for thinking that the courts have done what Parliament did not and rendered hiring and firing to be impermissible. But that is not so – the facts of the Tesco case were highly unusual.

In 2010, Tesco wanted a number of employees to relocate to new distribution centres rather than take redundancy packages, so they agreed to provide pay incentives – and it took the very onerous step of guaranteeing that those incentives would stay in place for as long as the employees remained in those particular posts, no matter for how long that was.

Many years after the event, with few of the relevant employees still in those positions and with the need to incentivise them to remain long gone, Tesco offered them 18 months’ worth of incentive payments as a lump sum to buy out the on-going benefit. When the employees refused this offer, Tesco purported to give notice to terminate their current employment contracts and to offer new ones that did not include the incentive payments. In that case, firing and rehiring was directly contrary to the specific bargain that Tesco had struck, and the court prevented them from doing that – but such circumstances will rarely apply to interfere with a dismissal and re-engagement strategy.

Despite the Tesco case, and indeed what might be described as the attempted demonization of the practice – even Boris Johnson described it as an “unacceptable” means to negotiate – the reality is that the approach is often the only route open to an employer to resolve a significant impasse that is threatening the future of its business; and it is a legitimate measure in those situations.

A check against employers implementing the practice is that it will be unfair to dismiss an employee for the purpose of forcing a change in employment terms unless the business need is reasonably considered to outweigh the harm done to the individual employee. It is therefore not something that can be done lightly to simply make an already profitable enterprise more profitable. An employee with the necessary two years’ service to qualify for unfair dismissal protection can bring a claim whether they accept re-engagement or not.

Now of course, many on the employee side of the fence will argue that the principal protection for an employee against the misuse of fire and rehire by unscrupulous employers is only available to those with over two years’ service, and employees without that protective length of service are over a barrel when it comes to deciding whether to accept rehire on less favourable terms. That is certainly true, but that argument is really about whether employees should have a minimum length of service before they acquire employment protection - and that is a wider matter of principle.

Another consideration for employers is that where proposals for fire and rehire will affect 20 or more employees at one establish within a 90-day period, there is an obligation to consult with any recognised trade union, or otherwise appropriate employee representatives, and not to effect any dismissals for at least 30 days – or 45 days where 100 or more employees are affected. A failure to apply those rules correctly can result in protective awards of up to 90 days’ pay for each affected employee.

When changes to employment contracts are a genuine, provable necessity for an employer and agreement with employees cannot be reached, the application of process is crucial to implementing dismissal and re-engagement in a fair and lawful manner with the minimum adverse impact on employee and public relations. When appropriate consultation with employees and, where relevant, their unions or other representatives, has not produced agreement, a correct termination process with notice should be applied, an opportunity to appeal should be offered (at least to those with employment protection), and care should be taken to ensure that the employees’ continuity of service is not broken.

For advice relating to the variation of terms and conditions of employment, contact me at Lanyon Bowdler.

The role of the Office of the Public Guardian (OPG) is to protect anyone who lacks the mental capacity to make financial decisions for themselves. The OPG supervises deputies, attorneys and guardians. Deputies are appointed by the Court of Protection and a requirement of their role is to complete an annual report for the OPG. The OPG has a responsibility to check that the deputy is doing everything that they should be doing. This involves making sure they keep to the terms of the deputyship order, and that the decisions they make on behalf of the protected person (P) follow the Mental Capacity Act and are in P’s best interests.

An annual fee of £320 is set for general supervision and £35 for minimal supervision. Cases are subject to minimal supervision where the capital to be managed is below £21,000, with every other case being subject to general supervision.

The deputy’s full report (OPG102), for those who are subject to general supervision comprises into eight sections, which sets out the following:

1. Deputy and P’s information, including the reporting period;

2. Significant decisions made over the reporting period, including the level of involvement with P. This demonstrates that the deputy has complied with their obligations to act in P’s best interests;

3. People who have been consulted, their relationship with P and the reason they were consulted;

4. Details of P’s care arrangements and what contact they have with the deputy and other people. This is to check whether P’s needs are being met. The report also requires details of income paid to a third party, such as a DWP Appointee, and includes confirmation that a check has been made of P’s benefit entitlement;

5. Details of P’s main bank accounts, with details of money paid in and out, including major purchases, cash withdrawn, deputyship costs and expenses, and gifts made. The report requires a reconciliation of the account from the start to the end of the accounting period;

6. P’s savings and investments are set out, including land which is solely or jointly owned, property held outside of England and Wales, cash in hand, valuable objects and assets held in trust. The deputy must also confirm if independent financial advice has been obtained and what debts P has;

7. The deputy must set out what significant decisions they expect to make during the next reporting period and whether they have any concerns about the role; and

8. The deputy then signs a compliance declaration.

The report for minimal supervision (OPG103) comprises into 11 sections.

• Sections 1 - 5 are almost identical to the OPG102;
• Section 6 sets out the balance in each bank account;
• Section 7 requires only lists of payments made over £1,000, gifts and deputyship costs and expenses;
• Section 8 contains details of land and whether it is jointly owned, and lists investments and savings;
• Section 9 requires debts to be listed;
• In section 10, the deputy must set out what significant decisions they expect to make during the next reporting period; and
• Section 11 contains the same deputyship declaration as the OPG102.

We understand that dealing with these reports can be daunting and sometimes difficult, if you would like any further information or advice in relation to the OPG, assistance with completion of the OPG Report, or appointing a lay/professional deputy then please feel free to contact a member of the specialist Court of Protection team at Lanyon Bowdler.

While 14 February is earmarked for celebrating affairs of the heart, February is also National Heart Month, which aims to call attention to the warning signs of heart-related conditions which, according to the British Heart Foundation, one in two of us will experience in our lifetime. National Heart Month is an opportunity to arm ourselves with a greater awareness of circulatory disorders such as heart attacks, cardiac arrest, vascular dementia and heart disease, so that we can better prepare ourselves should we encounter these conditions in our lives.

Heart attacks
Heart attacks occur when the blood supply to the heart muscle is somehow cut off and is often caused by a blocked coronary artery. Heart attacks can starve the heart muscle of oxygen, which may leave it permanently damaged. Symptoms of heart attacks can include chest pain, the sensation of pain travelling to other parts of the body from the chest outwards (including your left arm, but note either or both arms, upper back and jaw can also be affected), shortness of breath, sweating and nausea.

Cardiac arrest
Cardiac arrest is when the heart suddenly stops pumping blood around the body. While blood is not moving around the body, the brain becomes starved of oxygen and may suffer damage as a result. This will often cause a person to collapse or become unconscious, very quickly become grey and stop breathing. Both heart attacks and cardiac arrest are medical emergencies and you should call 999 if you believe you or someone else is experiencing either.

Vascular dementia
Vascular dementia occurs when the blood vessels within the brain leak or become blocked, resulting in the loss of brain cells which cannot be reached. This condition causes problems with mental abilities such as concentration, communication and memory, it may also cause personality and mood changes as well as physical symptoms such as tremors or balancing difficulties. These symptoms can start suddenly or gradually, although they tend to worsen over time. There is currently no way to reverse the loss of brain cells prior to the diagnosis of vascular dementia.

Cardiovascular Disease (CVD)
This is an umbrella term encompassing an array of heart and circulatory disorders including strokes, coronary heart disease, which reduces or stops the flow of oxygenated blood to the heart and can lead to heart attacks, and vascular dementia. CVD is one of the primary causes of death and disability in the UK and some of the risk factors for developing CVD are high blood pressure, high cholesterol, and a family history of CVD.

Lanyon Bowdler acknowledges the difficulties and worry heart-related conditions can place on someone, and this is only worsened where there is a suggestion of substandard medical care, including warning signs being missed. If you believe yourself or a loved one has been affected by insufficient care regarding a circulatory disorder, our Clinical Negligence team are on hand to discuss this with you further.

For more information about the above conditions, please visit the links below:

Heart attacks:

https://www.bhf.org.uk/informationsupport/conditions/heart-attack/symptoms;

https://www.nhs.uk/conditions/heart-attack/;

Cardiac arrest:

https://heartresearch.org.uk/cardiac-arrest/;

https://www.bhf.org.uk/informationsupport/conditions/cardiac-arrest;

Vascular dementia:

https://www.alzheimers.org.uk/about-dementia/types-dementia/vascular-dementia;

https://www.hopkinsmedicine.org/health/conditions-and-diseases/dementia/vascular-dementia#:~:text=Vascular%20dementia%20is%20the%20second,blocked%20by%20a%20blood%

20clot;

https://www.nhs.uk/conditions/vascular-dementia/;

Cardiovascular disease:

https://www.nhs.uk/conditions/cardiovascular-disease/;

https://www.bhf.org.uk/informationsupport/conditions/cardiovascular-heart-disease.

The Royal College of Surgeons of England have found that patients who received vascular service within Betsi Cadwaldr University Health Board (“the Health Board”) have suffered a substandard of care due to failings. Vascular services seek to provide diagnostics and treatments for the vascular system, ie the vessels that carry blood and lymph through the body. After significant changes to the way the Health Board provide the vascular services over recent years, The Royal College of Surgeons of England have released a “damning” report concerning the provision of care to their patients.

Background

In brief, the Health Board announced in January 2013 that all services for major and complex in-patient arterial surgery and emergency vascular surgery would be centralised onto a single site at Ysbyty Glad Clywd Hospital. As part of this transition, interim arrangements established two provision sites; one at Ysbyty Gwynedd Hospital and Wrexham Maelor Hospital. However, centralisation of provision vascular services was delayed due to renovations at Ysbyty Glad Clywd Hospital and an external invited service review in 2015 concluded that patients’ safety was being compromised with the provision of the two site model.

The review suggested that the Health Board should not delay the decision to centralise the provision of major and complex arterial surgery and emergency vascular surgery as part of delivering the vascular surgery service by an integrated network hub and spoke models at Ysbyty Gwynedd Hospital and Wrexham Maelor Hospital. This would be otherwise known as the integrated vascular network and its purpose was to improve early decision-making capability and access to diagnostics, allowing for early treatment.

In April 2019, complex vascular services were moved from Ysbyty Gwynedd Hospital and Wrexham Maelor Hospital to Ysbyty Glad Clywd Hospital, therefore implementing the integrated vascular network and centralisation as the review had encouraged. After patients and staff raised fears about the new service at Ysbyty Glad Clywd Hospital, the Health Board was requested in September 2020 to review its vascular services.

The Report

On 20 January 2022, The Royal College of Surgeons of England issued “Report on 44 clinical records relating to vascular surgery on behalf of Betsi Cadwaladr University Health Board” (https://bcuhb.nhs.wales/news/updates-and-developments/updates/vascular-services/vascular-services/clinical-vascular-report-january-2022-pdf/).

The review considered the clinical records and background of 44 patients.

In summary, the report identified concerns relating to the clinical records, whereby the majority of the records were illegible, disorganised and incomplete. The report also identified, in one shocking instance, a patient was offered an amputation that was considered to be inappropriate by the review team, due to the patient’s age and previous medical history/conditions. The review team suggested alternative treatment such as conservative or palliation care should have been considered by the Health Board before proceeding with the unnecessary and futile amputation. In another instance, a patient had been discharged following an amputation without a care plan and the patient’s wife had to ‘carry him to the toilet’ as a consequence of this.

Overall, the majority of the 44 clinical records did not document communications with the patients regarding their care and informed consent, including the risks and benefits to the treatment.

In its recommendations, the report suggested the Health Board reviewed the care of the patients that the review team were unable to determine the outcome of, in order to ensure it has met its ethical and legal obligations. It was also recommended that the Health Board should review the MDT and clinical pathway arrangements to those undergoing vascular surgery, to ensure that there is appropriate MDT input into the decision-making for every patient and this decision-making be documented. The consent-taking practices should also be reviewed within such services to ensure that patients are given appropriate information of risks, benefits and alternatives of treatment, and it is legibly documented.

The Executive Medical Director at Betsi Cadwaladr University Health Board, Dr Nick Lyons, responded to the report on 3 February 2022 stating “since I joined the Health Board, it has become very clear to me a significant amount of improvement work is needed to enable us to deliver the very best outcomes for our vascular patients across our North Wales network”. He also stated that he was “very concerned to note the review’s findings in relation to the quality and consistency of care provided – we must do better”.

Health Minister’s Response to RCS Report

Following the report being issued, Eluned Morgan, Minister for Health and Social Services for Wales, released her written statement on 3 February 2022 where she noted she was “disappointed and concerned” by the report. She stated, “the cases reviewed here involve real people and their families and there will be many others who may be worrying about the quality of the care they have received or are about to receive and whether this service is safe”.

The Minister proceeded to state that “For the sake of people in North Wales who need this service, and the staff working to provide this care, we must now do all we can to ensure the Health Board implements to properly, to make the pathway seamless and to improve outcomes”.

We at Lanyon Bowdler understand and appreciate our clients’ concerns when receiving healthcare services and treatment, in particular when there may be poor care provided to them. If you consider that you have been affected by substandard care, our team are happy to discuss your treatment with you and guide you through the process.

The Highway Code has been updated and important changes were introduced from Saturday 29 January 2022. The changes are the result of a public consultation and they apply to England, Scotland and Wales.

The Introduction to the updated Highway Code states that it is designed to improve road safety for the most vulnerable road users, being pedestrians, cyclists and horse riders.

All road users are to be considerate towards one another.

There are eight particular changes to the Highway Code that you need to be aware of:

1. Hierarchy of road users

There is a new “hierarchy of road users”. This puts the most vulnerable road users, including pedestrians, at the top of the hierarchy.

2. People crossing the road at junctions

When people are crossing or waiting to cross at a junction, other road users should give way to them because they have priority.

Drivers and cyclists must give way to people on a zebra crossing and people walking and cycling on a parallel crossing.

3. Walking, cycling or riding in shared spaces

Cyclists and horse-riders should respect the safety of pedestrians in shared spaces but pedestrians should also take care not to obstruct or endanger them.

Cyclists are asked to take care when passing other users, for example, by not passing them too closely or too quickly, slowing down and giving warning of their approach (for example, by ringing their bell), and not passing a horse on the horse’s left.

4. Positioning in the road when cycling

There is updated guidance about the positioning of cyclists in the road.

Cyclists may ride in the centre of their lane on quiet roads, in slower moving traffic, and at the approach to junctions or where a road narrows.

Cyclists should keep at least 0.5 metres from the kerb edge when riding on busy roads.

People cycling in groups should be considerate towards the needs of other road users and allow motorists to overtake them when it is safe to do so.

Cyclists in groups can ride two-abreast.

5. Overtaking when driving or cycling

It is permissible to cross a double-white line, if necessary, in order to overtake a cyclist or horse rider if they are travelling at 10mph or less.

There is updated guidance on safe passing distances and speeds for people driving or riding a motorcycle when overtaking vulnerable road users.

Cyclists may pass slower-moving or stationary traffic on the right or left but should proceed with caution.

6. People cycling at junctions

When turning into or out of a side road, cyclists should give way to pedestrians who are crossing or waiting to cross.

There are new special cycle facilities at some junctions, including small cycle traffic lights at eye-level height which may allow cyclists to move separately from or before other traffic.

There is also new guidance for cyclists where there are no special facilities for them at junctions. The Code recommends that cyclists should behave like other traffic where there are no separate cycling facilities, including positioning themselves in the centre of their chosen lane, where they feel safe to do so.

The Code includes advice for cyclists using junctions where signs and markings tell them to turn right in two stages.

The Code clarifies that cyclists going straight ahead at a junction have priority over traffic waiting to turn into or out of a side road, unless indicated otherwise.

7. People cycling, riding a horse and driving horse-drawn vehicles on roundabouts

Motorists and motorcyclists should give priority to cyclists riding on roundabouts. They should not, for example, attempt to overtake a cyclist within that person’s lane.

Motorists should not cut across cyclists, horse riders or people driving a horse-drawn carriage, who are continuing around the roundabout in the left hand lane.

8. Parking, charging and leaving vehicles

The Code recommends the use of a new technique when a person is leaving a vehicle.

Drivers and passengers should open the door using their hand on the opposite side to the door they are opening. For example, a driver should open their door using their left hand. This makes them turn their head to look over their shoulder behind them. This will help to avoid collisions with cyclists, motorcyclists and pedestrians, who may be approaching from behind the vehicle.

The Code now also includes guidance about using an electric vehicle charge point.

The updated Highway Code will be published in April 2022 but is currently available online.

Following on from our previous blog where we set out an update regarding mandatory COVID-19 vaccinations for all healthcare workers working within a ‘regulated activity’ from 1 April 2022, the Government has now made a U-turn and is looking to revoke the legislation that would have brought those changes into effect. It is also intending to end the requirement, that has been in place since 11 November 2021, that workers in CQC-regulated care homes in England be fully vaccinated.

The above plans are subject to a two-week consultation period and Parliamentary approval, but Health and Social Care Secretary, Sajid Javid, has said that the consultation, which is a legal requirement, is unlikely to change the position.

The change in direction has been made in response to the outcome of research which has become available since the initial decision on mandatory vaccination was made. This research suggests that a greater level public protection from COVID-19 has now been achieved, and that the Omicron variant is less severe when compared with the Delta variant.

In order to have met the requirement to be fully vaccinated by 1 April, unvaccinated healthcare workers would need to have received their first jab by 3 February.

Secretary of State has confirmed that once the relevant legislation has been revoked, CQC-regulated care homes in England will be able to re-employ unvaccinated workers who left or were dismissed due to the compulsory vaccination requirement, but without statutory continuity of employment being restored.

NHS leaders have sent a letter to NHS employers requesting that they do not serve notice of termination on unvaccinated employees, and it would clearly be prudent for employers in the regulated sector outside the NHS to do likewise. In addition to this, all employers in affected regulated and care sectors should keep up to date with the outcome of the consultation process and, ultimately, Parliament’s decision in respect of the Government’s proposal to abolish mandatory vaccination.

If you require any further advice on the above updates and their implications, please do contact our employment team to arrange an appointment.

Artificial Intelligence (“AI”) has long been tipped to transform our world, and will change the nature of employment roles as machines complement the human workforce. With partial automation of tasks, many job responsibilities will be reconfigured so that a human touch is no longer needed.

Recently, a fully-autonomous robot has successfully performed keyhole surgery on pigs – without the guiding hand of a human surgeon. Apparently, the robot surgeon produced “significantly better” results than its human counterparts. The surgery has been described as a “breakthrough” and is another step towards the day when fully autonomous surgery can be performed on human patients. (https://www.theguardian.com/technology/2022/jan/26/robot-successfully-performs-keyhole-surgery-on-pigs-without-human-help)

But does AI have the capability to reduce incidences of clinical negligence for the NHS, and will that mean less people being unnecessarily injured/dying in a hospital setting?

A quick overview of the law in relation to clinical negligence: to be able to successfully pursue a claim for clinical negligence, a person must clear two legal hurdles: firstly, the treatment complained of amounted to a “breach of duty” – that it was so poor that no reasonable body of medical opinion would have considered it to be reasonable or normal; and secondly that the breach of duty caused the person to suffer injury (“causation”).

Going back to the pig surgery, the Smart Tissue Autonomous Robot (STAR) carried out laparoscopic surgery to connect two ends of an intestine in four pigs. This process of connecting two ends of an intestine (“anastomosis”) is a highly technical and challenging procedure in gastrointestinal surgery, requiring a surgeon to apply sutures with a high degree of accuracy and consistency. Whilst anastomotic leaks can occur naturally or non-negligently, one misplaced stitch, or poor technique, can result in a leak that could lead to the patient suffering fatal complications. Thus, breaches of duty arising from anastomotic leaks are, sadly, quite commonplace.

In contrast, according to a paper published in Science Robotics, the STAR robot excelled in carrying out the robotic anastomosis, with the resultant suturing being better than anything a human surgeon could do.

On this basis, it is easy to see that there is the potential to revolutionise surgery, and for robots to reduce the incidences of harm caused by human errors and avoidable complications, such as those caused by a missed stich or an untoward hand tremor. This, naturally, is a good thing, and correspondingly would reduce claims being made against the NHS.

However, a word of caution: we have been here before.

AI has been touted as the saviour to the medical profession before. Back in February 2016, Google’s AI subsidiary, DeepMind, announced it was working with NHS Trusts to analyse patient data. The company intended to combine AI, machine learning with bulk medical data to develop models that could predict or diagnose acute kidney injury. However, issues around patient confidentiality meant that in 2017, DeepMind Health (later a division of Google Health) was found to have not complied with UK data protection laws, according to the UK Information Commissioner’s Office (https://www.cnbc.com/2017/07/03/google-deepmind-nhs-deal-health-data-illegal-ico-says.html).

Similarly, in February 2020, Google Health, the branch of Google focused on health-related research, clinical tools, and partnerships for health care services claimed that its’ AI models could “beat” humans when interpreting mammograms and detecting breast cancer. However, as studies have found, you can show the same early-stage lesions to a group of doctors and get completely different interpretations about whether the lesion is cancerous or not. Even if the doctors do agree as to what a lesion shows — and their diagnoses are actually correct — there’s no way of knowing whether that cancer will prove to be fatal. This leads to over-diagnosis, triggering a chain of painful medical interventions that can be costly and life-changing. In the case of breast cancer, it may lead to radiotherapy, chemotherapy, the removal of breast tissue (a lumpectomy), or the removal of one or both breasts entirely (a mastectomy). These aren’t decisions to be rushed, and ultimately may lead to treatments that, clinically, are not medically necessary and lead to an increase in claims for medical negligence being made. (As an aside, in August 2021, Google’s parent company, Alphabet, said it was shutting down its Google Health Division, so clearly all is not well in the land of AI (https://www.forbes.com/sites/johanmoreno/2021/08/21/google-dismantling-health-division/?sh=71316d9de401))

Clearly, there is tremendous potential for AI to help change the provision of care for patients for the better. But it is not a silver bullet or panacea to eradicate human error in the clinical decision making process or during the performance of surgery. It is not designed to remove humans from the equation. Instead, AI should be regarded as a tool which clinicians have at their disposal – just like a scalpel or stethoscope – to help them carry out their clinical duties effectively and, most of all, safely.

Therefore, it may be a little while yet before we see fully autonomous robot doctors roaming the halls of hospitals and GP surgeries across the country…

Currently, COVID-19 vaccinations are only mandatory, as a matter of law, for those working in care homes. However, this is set to change from 1 April 2022, when the mandatory vaccination requirement is scheduled to be extended to those working in "any other regulated activity" outside a care home. The regulated activities include, but are not limited to, nursing and personal care, and most forms of health care including medical treatment, surgery, diagnostic services, ambulance services, midwifery and dentistry.

Whilst the Health Secretary, Sajid Javid, commented on 25 January that the government is “reflecting” on this policy in wake of the Omicron variant, as things stand, any individual whose employment in a regulated activity, and who does not fall within one of the exemptions, must have had their first vaccine by 3 February 2022 to ensure the continuation of their employment.

There are to be a number of exemptions to when this vaccination requirement will apply, including where the person is under 18, is clinically exempt, has no face-to-face contact with service users, or where the regulated activity is part of a "shared lives agreement". It is expected that there will be similar exemptions applicable in relation to clinical trials and new employees who have only received one dose of vaccine.

Given the timescale, employers need to act quickly to inform their employees that they must have their first COVID-19 vaccination by 3 February 2022 and if they do not, this will trigger the start of a process which may lead to their dismissal on 31 March 2022, in order that the employer can comply with the law. Following this, employers need to consider which members of staff will be affected by the new law, whether a termination exercise is necessary and whether redeployment is possible in the event the employee is not willing to be vaccinated. Employers should consider having internal processes in place to allow for transparency and consistency. This is likely to be in the form of vaccination policies in which employers outline their stance on COVID-19 vaccinations and help to encourage vaccinations amongst their staff.

One point for employers to consider is how to advertise jobs moving forward. Where mandatory vaccination is required for a job, job adverts can specify this, however, employers will need to be careful with the wording of such adverts to ensure that they do not exclude those who are exempt from vaccination.

If you require any clarification on any of the above or if you wish to discuss this in more detail, please contact our Employment Team to arrange an appointment.

Unlike most other countries a Testator resident in England or Wales can make a Will leaving their estate after their death to whomever he or she wants, and exclude anyone who he or she doesn’t want to benefit from their lifetime assets. This exclusion can even include their children for no better reason, as one Judge observed, “to gratify one’s spite”.

The severity of the outcome for a disinherited beneficiary, especially young children or those who had been financially dependent on the deceased, was recognised by Parliament, resulting in the 1975 Inheritance (Provision for Family and Dependents) Act. In times of the gradual liberation of divorce laws during the 20th Century, the Act was intended to help protect the close financial dependents of someone who had died (perhaps in a second marriage) and prevent, for example, a step-parent inheriting the whole estate leaving the children by the deceased’s first marriage at best impoverished, or at worse destitute.

The Act does not re-write the deceased’s Will but allows an applicant to apply for “reasonable financial provision” taking into account:

• the needs and resources of those involved;

• the responsibilities and obligations held by the deceased towards the applicant or others who may claim a valid entitlement to the estate;

• the size of the estate;

• whether anyone involved is disabled;

• any other matter the Court considers relevant, including the conduct of those involved (including the Testator).

To what extent though can the benefit of the provisions of the Act be claimed by the deceased’s adult children who, having left home and forged their own way in life, may nonetheless be expectant of an inheritance from their deceased parent?

Although all cases are different, the claim by Heather Ilott lott against her late mother’s estate, illustrates how the Courts themselves can interpret the provisions of the Act and the difficulties faced by any adult child in pursuing such a course.

Heather Ilott was her widowed mother’s only child, who left home at the age of 17 to be with her lover, whom she later married. Mother did not approve of the union and disowned her daughter. There were several attempts at reconciliation (after the successive births of grandchildren), but none were successful and all ended in bitter recrimination.

At the time of mother’s death in 2004 Heather (now in her 50s) had five children but no pension and was dependent on state benefits. Her mother had left her estate, worth almost £500,000, to three animal charities.

At the first County Court hearing of her claim, Heather was awarded £50,000 from the estate, seemingly because the Judge found mother’s conduct “unreasonable, capricious and harsh”. Heather appealed and was rewarded by the Court of Appeal with an increased award of £163,000 to enable her to purchase her council house under the “reasonable provision” principles of the Act.

On Appeal to the Supreme Court by the charity beneficiaries in 2017 the Court of Appeal decision was overruled and the initial award of £50,000 reinstated. So after 13 years of litigation, with a large proportion of the estate consumed by the legal costs of three separate Court actions, was justice done or seen to be done? Lawyers’ opinions are divided. Some say that even the reinstated award of £50,000 was wrong and motivated more by the desire to spare the state the cost of state benefits paid to a potential beneficiary of a comparatively wealthy estate, rather than any proper legal interpretation of the Act itself (Heather was not “dependent” on her mother at the time of her mother’s death). Others say the decisions show an inclination by the judiciary to impose a “forced inheritance” on family members who, in line with other EU jurisdictions, would normally receive a statutory entitlement to a share of their deceased parent’s estate.

What can be said, however, is that any claim by a financially independent adult child (whether in receipt of state benefits or not) under the Act, remains fraught with difficulty and uncertainty. An unsuccessful claim will cost punitive sums of money and achieve nothing except more bitterness.

In practice, instances of a parent wishing to disinherit their children are rare. The more common instructions are those where the spouse, or spouses, of second marriages wish to preserve the inheritance of their children by their first marriage (and avoid their disinheritance by the surviving spouse). There are several ways a Will can be written to safeguard this objective, thereby avoiding the need to even consider a claim under the Act. A Will of this sort however is not one for the layman, and proper legal advice is imperative.

January marks Cervical Cancer Awareness month of the purpose of which is to spread awareness of cervical health and educating individuals of risks or symptoms they should be aware of. According to Cancer Research, there were approximately 3,200 new cases of cervical cancer each year with 99.8% of estimated to have been preventable.

This year’s Cervical Cancer Awareness month has coincided with the recent announcement by the Welsh Government that women and people with a cervix will now receive their cervical screening every five years rather than every three years in Wales. The extension to the cervical screening interval was introduced on 1 January 2022. As a result, it has never been more important to discuss cervical cancer and the purpose of smear tests.

What is Cervical Cancer?

Cervical cancer is a cancer which is found anywhere in the opening between the vagina and the womb, otherwise known as the cervix. Nearly all cervical cancers are caused by an infection from certain types of ‘Human Papillomavirus’ (HPV) with one preventable measure of developing cervical cancer being to attend regular smear tests to screen for this virus and for abnormal cells.

There are more than 100 different types of HPV and only certain types will cause cervical cancer. One purpose of the smear test is to determine whether a high risk HPV is present within the cervix of an individual.

What is a ‘Smear Test’?

A smear test, otherwise known as cervical screening, is a procedure used to prevent cervical cancer. Women and people with a cervix aged between 25 to 64 are invited to attend for a screening and a sample of cells is taken from their cervix. The cells are then checked for high risk HPV, which can cause changes to the cells of the cervix and consequently develop into cancer.

In England, women and people with a cervix aged 25 to 49 are invited to attend their cervical screening every three years, whilst those aged 50 to 64 will be invited every five years.

In Wales from 1 January 2022, women and people with a cervix aged between 25 to 49 will be invited to attend their smear test in five years’ time following a smear test where HPV was not found. The process for those aged 50 to 64 remains unchanged.

The reason for this change is Public Health Wales indicated that recent evidence has shown that it was safe to extend this timeframe in individuals where HPV was not identified during their screening.

Petition

Following the announcement, a petition was launched to revert screenings every three years opposed to five years due to fears of further deaths from cervical cancer. This petition currently has over 900,000 signatures at time of writing.

Public Health Wales responded to the backlash following the announcement by acknowledging that they had not done enough to explain the reasons for the change to cervical screening. They stated that they are working to make the reasons for the change clearer, and to provide further information.

Cancer Research UK also confirmed that the change in cervical screenings was based on evidence and not related with cost-saving purposes.

What are the signs and symptoms of Cervical Cancer?

The signs and symptoms of cervical cancer include:

• Vaginal bleeding that is unusual for you
• Changes to your vaginal discharge
• Pain during sexual intercourse
• Pain in your lower abdomen, between your hip bones, or in your lower stomach

For further information, please visit the NHS website below.

Symptoms of cervical cancer - NHS (www.nhs.uk)

Treatment for Cervical Cancer

Treatment for cervical cancer will vary and depend upon where in the cervix the cancer is, its size or stage and whether it has spread to anywhere else.

Usually, treatment will include surgery such as a hysterectomy or a combination of chemotherapy and radiotherapy.

According to Cancer Research, more than 60% of individuals will survive their cancer for five or more years after diagnosis, with earlier diagnosis being key to survival rates.

At Lanyon Bowdler, we understand and appreciate the difficulty our clients have in coming to terms with a cancer diagnosis, particularly when there may be concerns in relation to the standard of care that they have received. If you consider that your care has been affected by a delay in diagnosis, our team is happy to discuss your treatment with you and guide you through the process.

Podcast

In the summer of 2020 Beth Heath and Katherine Jones recorded an episode of The Legal Lounge where they spoke about the delay in diagnosis on cancer using two fictitious but typical case studies, one relates to cervical cancer, you can listen here: https://apple.co/38Opw4Y

References:

Cervical cancer statistics | Cancer Research UK

Cancer: Cervical screening in Wales to be every five years - BBC News

Forgetting to file a form on time, including the wrong number in your calculations or simply misspelling a company’s name. We have all been there and we have all, at one time or another, experienced that sinking sensation the moment we realise we’ve made a mistake.
It’s not how we make mistakes, it’s how we correct them that’s most important. That’s why the Registrar of Companies has the power to amend or clarify its register in certain circumstances.

Companies House Register Rectification

A vital role of Companies House is to register company information and make it available to the public. This register must be as complete and accurate as possible.

Informally amending a mortgage or charge

Companies House can informally correct forms relating to the registration of a mortgage or charge which contain incomplete or internally inconsistent material. This option is only available to correct specific information. Companies can sign up to this option by downloading and completing an informal correction notice of consent from the Companies House website which names a point of contact who Companies House will contact in the event the documents submitted are incomplete or internally inconsistent.

Replacing a document

Companies House also allows you to correct inaccuracies made on certain documentation by filing a second filing of the relevant form online and using Form RP04. The majority of forms can be re-filed and a list of the applicable forms are available at https://www.gov.uk/government/publications/file-a-second-filing-of-a-document-previously-delivered-rp04. However, please note that the original incorrect form will remain on the register and cannot be removed. The only way to remove the incorrect form is via a court order or by application to the Registrar.

Removal and rectification

Companies House may take the view that certain information in a document delivered to it is inconsistent. They may issue your company with a formal notice asking them to correct such inconsistences within 14 days of the notice. If your company fails to comply, it and every officer in default, is guilty of an offence.

In addition, Companies House can also remove from the register (a) unnecessary material and (b) material derived from a document that has been replaced because it was not properly delivered or replaced following the issue of an inconsistency notice. However, the use of this option is again limited and doesn’t relate to certain information the registrar is obliged to accept or that which had legal consequences, for instance in relation to the company’s formation.
Furthermore, Companies House can also remove certain material if it (a) derives from anything invalid or ineffective, or was done without the authority of the company or LLP or (b) is factually inaccurate or is derived from something that is factually inaccurate or forged.

Court Order

Finally, Companies House must remove anything the court declares to be factually inaccurate or that the court directs them to remove. The court can only order the removal of material whose registration has legal consequences (e.g. in relation to formation or a reduction in capital), if they are satisfied the material has caused/may cause damage to the company and the company’s interest in removing the material outweighs that of any other person in the information staying on.

Conclusion

As a director of a company, you have a legal duty to ensure your company’s filings are accurate and up-to-date at Companies House. There are certain offences committed on default depending on the specific filing but overall, it is an offence for any person knowingly or recklessly either delivering or causing to be delivered a document, or statement that is misleading, false or deceptive in a material way. If you are aware of inaccuracies within your company’s filings at Companies House then please contact Lanyon Bowdler’s corporate department on 01952 291 222 so that we can advise you on the most cost efficient and legally complaint course of corrective action.

From 1 January 2022, the reporting requirements for Excepted Estates will change. This blog aims to give you a whistle-stop tour of the changes that both clients and practitioners should be aware of.

What is an Excepted Estate?

Excepted Estates are those below the current Inheritance Tax (IHT) threshold in England and Wales. Usually if an estate has no IHT to pay, it will be excepted.

For deaths after April 2010, an estate will generally be excepted if:

• It is a small estate – i.e. under the £325,000 IHT threshold;
• It is an exempt estate – this is normally where the deceased left everything over and above the £325,000 threshold to a spouse, civil partner, or qualifying charity; or
• The value of the estate is less than twice the IHT threshold (£650,000), provided 100% of the threshold from a spouse or civil partner who has predeceased is available.

Any estate which meets one of these criteria, and where the deceased died after 1 January 2022, will be subject to the new reporting rules.

What are the current reporting requirements?

On any Excepted Estate where the deceased died before 31 December 2021, the personal representatives (or a solicitor acting on their behalf), are required to submit a shortened version of the full IHT form – an IHT205 - to HMRC. If the estate is also claiming the unused IHT threshold of a spouse or civil partner who predeceased, the personal representatives are also required to submit IHT form IHT217.

What is changing?

From 12 January 2022, where a deceased died on or after 1 January 2022, the personal representatives are no longer required to submit either an IHT205 or IHT217 as part of the Probate process.

After this date, the online Probate system, MyHMCTS, will instead request the following information:

• The net value of the estate for IHT purposes;
• The gross value of the estate for IHT purposes;
• The net qualifying value of the estate; and
• If applicants are claiming the IHT threshold of their spouse or civil partner who has predeceased.

Any applications where death occurred before 1 January 2022 will continue to be processed under the old system.

Other significant changes effective from 12 January 2022 include:

• For small estates, the limits on the value of both trust property and specified transfers, in the seven years before death, are increased from £150,000 to £250,000;
• For exempt estates, the limit on the gross value of the estate is increased from £1 million to £3 million (although the total amount of trust property is limited to £1 million), and again the limits on the value of both trust property and specified transfers in the seven years before death are increased from £150,000 to £250,000; and

There will be no changes to the Excepted Estates rules where the deceased was not domiciled in the UK at the date of their death and had never been domiciled, or deemed domiciled, in the UK during their lifetime.

What does this mean for personal representatives and practitioners?

On the whole, this should make the process of applying for a Grant of Probate on a small or Excepted Estate less burdensome for personal representatives and probate practitioners.

HMRC will be submitting guidance on what constitutes an Excepted Estate in due course and their online IHT checker tool will also be updated to reflect the changes.