How to terminate an employment contract

Lawpack on March 27, 2020

When you want to dismiss an employee and terminate their employment, you must give them the proper notice period. This should be outlined in their employment contract, which you should have given to them when you first hired them.

You may also have outlined your company’s staff dismissal policy at the start of their employment if you gave them a Dismissal and Disciplinary Procedure when they joined the company.

But if a notice period hasn’t been expressly agreed should dismissal occur, then you can terminate employment upon ‘reasonable’ notice. What is reasonable depends on factors such as the employee’s seniority, age, length of service, remuneration, and what is usual in their profession or industry.

Whatever has been stated in their employment contract, the notice period mustn’t be less than the statutory minimum notice period.

The statutory minimum notice period

  • Employee’s length of service is less than 1 month – No notice period
  • Employee’s length of service is 1 month to 2 years – 1 week
  • Employee’s length of service is 2 to 3 years – 2 weeks
  • Plus an additional week for each year of continuous employment to a maximum of 12 weeks

If you terminate their employment without proper notice, then your employee does have a claim for wrongful dismissal (see below for further details).

If you’ve given them proper notice, they will have no claim for compensation. But they may still have a valid claim for unfair dismissal, even if the proper notice period is given.

Instant dismissal

When an employer terminates an employee’s employment contract, they often want the employee to stop working immediately. They may want instant dismissal to take affect, as they may be worried that the staff member may not continue to work effectively or they may be disruptive in the workplace. If this is the situation in your case, it’s usual for you to pay them a sum in lieu of notice or as compensation for failure to give notice.

Sometimes the employment contract will expressly state that you can terminate employment on payment of a sum in lieu of notice. In this instance, when the payment is made, tax and National Insurance deductions should be made in the usual way.

If there is nothing in the employment contract relating to making payments in lieu, the payment may be paid tax-free, up to a limit of £30,000 and without deduction of National Insurance contributions. It’s not always entirely clear whether the payment is tax-free, so it’s worth seeking advice on this point.

If a payment in lieu of notice is made, it’s not only the employee’s salary, but also all of their benefits, such as a company car, that must be included in the calculation. The exception to this would be if their employment contract stated that pay in lieu of notice didn’t include benefits.

Wrongful dismissal

If you dismiss your employee without giving the proper notice period and without pay in lieu of notice, then they’re entitled to claim damages for their notice pay and benefits; and this claim is known as ‘wrongful dismissal’. The exception to this is if the employee is guilty of gross misconduct, in which case you would be justified in the dismissal taking immediate effect. What constitutes gross misconduct does depend upon the work environment. Examples of gross misconduct are theft, damage to your property, physical assault and gross insubordination, or the employee not being able to work as they’re under the influence of alcohol or illegal drugs, or they have misused the email and internet.

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How do you start financial proceedings in a divorce?

Lawpack on March 27, 2020

If you want to formalise your financial situation when you split up with your spouse, then you need to make an application to the court to consider and separate your finances.

Before any formal financial proceedings can begin you have to attend a Mediation Information and Assessment Meeting to explore all non-court based ways to find a resolution. If no resolution can be found, then you can start financial proceedings.

Financial proceedings are started separately from divorce proceedings. So, although you may have already started divorce proceedings, you will have to fill in extra paperwork for your financial application.

Here is an outline of the documents that you need to complete:

1. Divorce Form A

The first thing you need to do is fill in a document called Form A. You must include the addresses, Land Registry numbers and mortgage details of each property that you may have a claim against. It’s also sensible to tick all the boxes on Form A even if you don’t intend to make a claim in the end.

The court fee is currently £255. However, this does change, so you should always contact your local court to check the fee. Your completed Form A and the fee is sent to the court which is dealing with the divorce paperwork.

Once you have filed your Form A then the court fixes a hearing date – called a First Appointment – within 12 to 16 weeks. Before the First Appointment there are some forms that have to be sent to the court and your spouse.

2. Divorce Form E

The main form is called Form E. This is a long form that is designed to give a comprehensive view of each spouse’s financial position. You have to include various documents with this form.

These are:

  • Any property valuations from the last six month
  • The most recent mortgage statement
  • The last 12 months’ worth of bank statements
  • The surrender value of your insurance policies
  • The last two years’ worth of business accounts
  • A recent pension valuation
  • Your last three payslips
  • The most recent P60.

This has to be sent to the court at least 35 days before the First Appointment.

At least 14 days before the First Appointment both spouses have to file with the court and give to the other spouse the following:

  • A concise statement of the issues in the case
  • A chronology of events in the marriage
  • A questionnaire with questions for your spouse about the answers they have given in their Form E
  • Form G, which asks you to state if you are ready to skip the First Appointment and consider a more complex hearing called a Financial Dispute Resolution Appointment.

3. Divorce Form H

Just before the First Appointment you have to send Form H to the court outlining an estimate of your legal costs (if any).

The First Appointment is mostly a procedural appointment that will determine how the case will proceed. The court will make orders about what questions your spouse should answer; what valuations are required; and whether any expert reports or other evidence is required.

Help from Lawpack

All the divorce forms you need – and expert guidance on how to use them – can be found in Lawpack’s Separation & DIY Divorce Kit.

If you need assistance in completing the forms, then you can use our DIY Divorce Service who will complete them for you. With our Managed Divorce Service they will complete them and also file them at court for you.

If you want more in-depth information from a divorce lawyer about all aspects of divorce law then read our guide, How to Get a Divorce by Punam Denley. Packed with tips and expert advice to ensure that you get through the divorce process smoothly.

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Can I do probate myself?

Lawpack on March 27, 2020

When someone dies and you’re faced with probate, it’s important to think about whether you employ a professional legal firm to administer the estate or if you decide to do it yourself.

Whether you handle all the tasks involved in administering the estate or use professional advisers is a matter of choice and convenience. Any fees properly incurred are paid out of the estate, subject to the terms of the Will.

Executors can seek professional advice from:

  • A bank
  • A Trust Corporation
  • A solicitor

You can also employ a stockbroker or other adviser to perform specific duties, even if you don’t use a professional to submit the probate application.

Here are some preliminary tips to consider when you’re deciding whether to go it alone:

Liability

As an executor or administrator, you are legally obliged to act in the interests of the estate.

If you pursue the DIY route, you may be personally liable for any mistakes or oversights, or if things go wrong.

If you feel unable to act as an executor or administrator, your best option is to employ a professional legal firm who will take on all the responsibilities on your behalf.

Your time

Make an honest appraisal of your time limits and ability to take on a task that can be complex and very time-consuming.

There are many things to organise when someone dies and it is easy to forget vital steps or become overwhelmed.

Problems

You should always take legal and professional advice if a problem arises that you feel you cannot deal with.

The complexity of the estate

If the Will or the estate is complex, professional advice should be taken.

Some signs where advice should be sought include the following:

  • The estate is insolvent.
  • A beneficiary cannot be contacted.
  • Someone intends to challenge the Will.
  • There is some question of the Will’s validity, or the Will cannot be found.
  • Someone stands to inherit a life interest in (or in Scotland a ‘liferent’ of) the estate.
  • Beneficiaries include children under the age of 18 (in Scotland, 16) and a trust is set up for them.
  • The deceased owned a business or was a partner in a business or owned agricultural property.
  • The deceased was a Name (i.e. an investor) in Lloyd’s of London insurance market.
  • A trust is set up under the Will.

 

Expert assistance

If you want to do probate yourself, then Lawpack is here to help. Our DIY Probate Kit includes all the probate forms you need, plus a 62-page guidance manual written by probate experts to help guide you through the process. The manual also includes template letters and examples of completed forms.

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Maintenance orders and payments

Lawpack on March 27, 2020

A significant number of divorce cases don’t clearly ‘end’ with the decree absolute. Even when a couple have agreed on the level of maintenance payments beforehand, one partner may still go back to the divorce court afterwards and ask for a higher level of maintenance payments, or for maintenance payments to continue for a longer time if the other ex-partner’s circumstances change.

Similarly, one partner may attempt to reduce the maintenance payments they make, due to the effects of inflation, retirement, redundancy or a change in their circumstances, such as a job loss, significant drop in income or new and special needs that may arise. Any significant increase or decrease in income by either spouse may cause the divorce court to modify the periodical payments order.

If the payer stops the maintenance payments, this may be for a valid reason, such as job loss. But the payer should never simply stop maintenance payments; instead, they should ask the divorce court to vary the maintenance order immediately.

When maintenance payments stop without being approved by the divorce court, you can register the outstanding periodical payments order at a Magistrates’ Court. This compels your ex- to pay future maintenance payments through the court, who will then enforce any missed maintenance payments or make an application to enforce payment of the arrears through a divorce County Court.

Expert legal advice should be taken as to which application is appropriate since the law in this area can be complex.

Alternatively, the Department for Work and Pensions may take up your case and help enforce the collection of any maintenance payments outstanding.

Do note that even when spouses reach an agreement as to the level of maintenance payments for the children, it will still be possible for either parent to apply to the Child Support Agency (CSA) for an assessment of the child support that the non-resident parent will have to pay from then on.

If the court has made an order for child maintenance which includes a condition that the child maintenance order will fall down if an application is made to the CSA after the child maintenance order is a year old, there is nothing the other spouse can do to prevent it.

In Scotland, if you have either a court decree or separation agreement for maintenance (called periodical allowance), it does not need to be registered at a court. To enforce the court decree or separation agreement, you should instruct a Sheriff Officer (usually done through a solicitor).

There are various powers available to the Sheriff Officer which include arrestment of wages, where the sum outstanding is taken from the non-paying spouse’s wages or salary on a weekly or monthly basis and paid either directly to the dependent spouse.

Or a current maintenance arrestment, where the maintenance payments are deducted at source from the non-paying spouse’s employers and paid directly to the dependent spouse.

All maintenance orders stop automatically when the receiving party remarries.

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Why you need a property inventory

Lawpack on March 27, 2020

It is frustrating for a landlord to be left covering the cost of damages or loss made to their property during their tenants’ residency.

Floors can be scuffed, carpets stained and doors unnecessarily snapped from their hinges, as well as basic furnishings disappearing, among many other inventory issues.

But when it comes to returning a tenant’s deposit, it is not as simple as taking the required fee from the sum. The landlord must be able to prove to both a court and a tenant that damage or loss has been suffered.

Conversely, it also covers the tenant from being penalised for damages that were already in place before they took up their residency, and thus, ensures landlords do not miss sufficient damage caused by a former tenant.

‘Sufficient damage’ refers to damage that is caused unfairly, and is opposed to Fair Wear and Tear. This is, as the House of Lords described it, ‘reasonable use of the premises by the tenant and the ordinary operation of natural forces’.

This is a contentious area because wear and tear can be a subjective matter. However, a detailed property inventory, perhaps composed by an experienced inventory clerk, should ensure appropriate standards of wear and tear are defined.

Landlords are subject to the Tenancy Deposit Scheme (TDS) and must place their tenant’s deposit into either a Custodial or Insurance scheme run by an independent provider.

Discrepancies arise when there is a dispute regarding the return of the deposit, often to do with issues surrounding property damage.

A detailed property inventory form must then be produced to prove exactly what damage was caused by the tenant, based on the condition of the premises prior to their arrival.

A property inventory is a legally binding document that provides an accurate in-depth review of the conditions and contents of a property at the start of a tenancy.

It is not enough to list an array of items the property is equipped with, nor is it sufficient to simply say where a scratch or crack lies.

The property inventory is part of the tenancy agreement between the landlord and the tenant, and as such, all defects must be carefully noted in the inventory to ensure that the landlord can prove a tenant caused harm to the property, which subsequently led to refurbishment, repair and/or cleaning costs.

A detailed account of a property will include the condition of fixtures, fittings and decorations, including walls, carpets and equipment.

It will also feature a full list of furniture and accessories, as well as an overview of the garden and outdoor vicinities.

It is less likely that areas like lofts and cellars will need to be covered, unless expressly requested.

There are a variety of reasons why a landlord should at the very least, make their way through a property inventory template.

However, it is most advisable they invest in a property inventory that could save them a lot of unnecessary, and often unfair, expenses.

The greatest reason for this is the fact that it gives landlords a level of security when claiming a fee from a tenant’s deposit.

It also ensures tenants are not held responsible for loss or damage they did not cause, which helps promote a healthy relationship between them and the landlord.

A detailed inventory will help speed up negotiations regarding deposits, and makes the process easier.

Lastly, a property inventory will ensure tenants realise the landlord values their property and takes offences against it seriously. This should go towards encouraging them to take greater care of their accommodation.

Landlords interested in making an inventory should consider downloading Lawpack’s solicitor-approved Property Inventory template.

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How to leave the residue of your estate

Lawpack on March 27, 2020

OK. So you are thinking about making a Will. And you’ve decided who you would like to leave ‘specific gifts’ of your property to. (Read more about making specific gifts when you make a Will in our article.)

What you have left of your property after your gifts is known in legal jargon used for will writing as the ‘residue of your estate’. The ‘residue’ is the term used to describe what property of yours is left over after the deduction of specific gifts, debts, legacies, tax and the expenses of administration.

If you decide not to make any specific gifts when making a Will, but instead give all of your property to one person alone, then this gift is known in Will-writing legal jargon as a ‘residuary gift’ (i.e. they will receive the whole of your residuary estate) and this person will receive whatever is left after the necessary deductions (i.e. debts, etc.) have been made.

You must make a residuary gift when making your Will, otherwise you will die partially intestate.

This means that any specific gifts and legacies can be distributed according to your wishes, but the remainder of your property, which makes up the residue, will be distributed under the rules of intestacy (outlined in our article 8 Reasons Why You Should Make a Will). This could result in a property distribution you may not have wanted.

Your residuary estate can be given to more than one person in your will but if you do so, you must state the share of the residue that each person is to receive, whether equal or otherwise.

DIY Will examples:

‘I give the residue of my estate to David Peter Ross, Susanna Hill and Nigel Jones in equal shares.’

or

‘I give the residue of my estate to my wife Gillian Ross (two-thirds share) and to my brother Richard Ross (one-third share).’

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Divorce: how can I protect myself financially?

Lawpack on March 27, 2020

Divorce law in England and Wales requires both parties to tell the absolute truth about their financial circumstances and there can be dire consequences if they don’t – usually the offending person is made to pay more in money and property to their ex-spouse, as well as being ordered to pay all of the divorce costs (which can be considerable).

Although it can be possible to protect yourself to a certain extent (financially speaking) upon divorce, you are not allowed to hide assets and income by fibbing about what you have. The divorce court also doesn’t ignore assets and income held by third parties as a matter of convenience (whether at home or abroad). The general rule is that all assets and income, in whatever manner they are held and wherever, are put into the ‘melting pot’ and are seen as available for the divorce court to redistribute between the couple upon divorce.

Divorce law is littered with cases of people trying to hide their assets and income in thousands of ingenious ways. The majority are unsuccessful – even offshore trusts and companies hold no sway with the divorce courts, which take a much more realistic view of ownership than, for instance, HMRC.

Also, a spouse who has tried to protect their money using tax-avoidance schemes (such as a trust) will not necessarily have the divorce court’s backing. To the contrary, the divorce court may not view the money to be an arms-length asset and it will be open to redistribution in the other spouse’s favour. Before embarking upon any exercise designed to put your wealth out of the reach of your spouse, take good legal advice or you may end up paying more than you would have done before you attempted to protect yourself.

So-called ‘simple’ ways of keeping assets from your spouse – such as placing assets in your sole name – also don’t really work as all the assets belonging to both spouses are taken into account by the divorce court. Putting all of the assets into joint names also doesn’t help and it may even make matters worse if the judge takes the view that unless there is evidence to the contrary, assets passed from one spouse to another are considered a gift and stay that way.

The only way you can really protect yourself financially upon divorce is to avoid a big contested financial battle through the lawyers and the courts so that you avoid the big legal fees that such litigation always entails. (Sir Paul will no doubt vouch for the huge divorce costs that can be incurred in such circumstances.)

The best way to avoid such a battle is to reach an agreement between the two of you in the divorce. Forget about the rest: the legal forms, the divorce lawyers, the divorce law and the divorce court.Your divorce is actually about you and your partner. So get talking!

If you can’t do this over the kitchen table, then try mediation or, failing that, collaborative law, where the parties agree in writing to reach a settlement without going to divorce court. Both are tried and tested methods of reaching settlements with the minimum of divorce lawyer and divorce court intervention. They are cheap (relatively) and they avoid the unpleasantness which inevitably accompanies contested divorces.

For more information, contact Resolution, or take a look at Lawpack’s Separation & DIY Divorce Kit which provides hundreds more tips on how you can handle your own quickie divorce and save legal fees and heartache.

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Probate: Where do I start?

Lawpack on March 27, 2020

When someone dies and before you start the probate process, it’s important to complete some initial tasks to secure the deceased’s property and check on their correspondence.

These tasks should be attended to as soon as possible, in preparation for dealing with the assets and liabilities of the estate.

Your first tasks as executors are as follows:

1. Redirect the post

Change the deceased’s postal address to that of the first applicant – the executor who is to handle day-to-day business and personal affairs.

2. Check on the property

If the deceased’s home is now left unoccupied, ensure that it’s securely locked; that water, electricity and gas supplies have been turned off (if appropriate).

3. Check the insurance policies

Ensure that there are both current buildings and contents insurance policies on the home.

The executors may be held liable by any beneficiary who receives less from the estate than they should have because of a burglary, fire or other loss.

4. Notify the insurers

The insurers should be notified of the death and given the names and addresses of the executors.

5. Remove any valuable items

If there are particularly valuable items at the deceased’s home and it is to be left unoccupied, it may be better to remove them for safekeeping.

6. Open an executor’s bank account

You will eventually deposit the proceeds of assets into this bank account. From this account you will also pay the liabilities and expenses of the estate and distribute the monies under the Will or intestacy.

7. Find the probate documents

Make a thorough search of the deceased’s papers and online records for the documents that will be needed to do probate. These will include:

  • Cheque books
  • Bank statements
  • Savings certificates and other National Savings assets
  • Outstanding bills
  • Share certificates and stockbroker’s details
  • Car registration documents
  • Mortgage papers
  • Insurance and pension documentation
  • Information on jewellery and collectables; for example, insurance valuations
  • Tax assessments, returns and other Tax papers

Once you have completed these tasks, the next task of executors is to identify the deceased’s assets.

You may also need to apply for a grant of representation (in England & Wales) or for confirmation (in Scotland) from the Probate Service.

Whether you require a grant of probate depends not only on the size of the deceased’s estate, but also on the kinds of assets in it.

Find out more on whether you need a grant of representation.

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Cohabitation and your lack of legal rights

Lawpack on March 27, 2020

In today’s modern society marriage isn’t for everyone, and some couples prefer not to tie the knot. But marriage and civil partnership provides certain legal rights that cohabitation does not, even though figures show there are more than four million unmarried people living with a partner in England and Wales.

Calls for equality

Lord Justice Sir Nicholas Wall recently called for greater rights for cohabiting couples, claiming that under current laws unmarried men and women are at risk of losing their homes and their incomes in the event of a break-up.

As the president of the Family Division of the High Court, his demands have commanded attention, and the issue of equality for cohabiting couples has been thrust firmly back into the spotlight.

Specifically, he advocated the creation of a cohabitation law, which would give unmarried couples who live together the same legal rights as those who are married when it comes to division of property and other assets.

“I am in favour of cohabitees having rights because of the injustice of the present situation,” he told The Times newspaper.

“Women cohabitees in particular are severely disadvantaged by being unable to claim maintenance and having their property rights determined by the conventional laws of trusts,” Sir Nicholas remarked.

He claimed that courts are already being more sympathetic towards people who have lived with their partners for many years before their relationships come to an end.

And equally, he explained: “If cohabitation has been short and the contribution minimal, judges would not be sympathetic to a claim.”

Understanding your rights

Despite these changes in attitude, it could be some time before a cohabitation law is introduced. It is therefore important that those who choose not to marry, for whatever reason, understand what they are and are not entitled to.

Many cohabitees wrongly believe that they have the legal protection of common law marriage and that the longer they live with their partner, the more rights they have.

In fact, common law marriage is a myth and hasn’t existed in England and Wales since 1753. Legal rights for unmarried couples are minimal, regardless of whether couples have cohabited for one year or several decades.

So what rights don’t you have as an unmarried cohabitee that a husband or wife would have in the event of a break-up?

Maintenance

At the moment, if you have any children with your ex-partner, he or she must pay maintenance in the same way they would if you were married.

However, you are not entitled to any maintenance for your own benefit, even if you have given up work to take care of your offspring.

Property

If you rent your home with your partner and he or she asks you to leave following a split, you will have no rights to stay in the property if the lease is in their name.

Similarly, if your partner owns your home and there is no legal documentation in place to prove that you own any share in it, you will have no rights to remain in the house or reap any rewards from its sale.

Other assets

Partners who live together often have joint savings, investments and personal possessions. If you are married and you divorce, these assets are usually split equally. If you are simply cohabiting, things are much more complicated.

In essence, you have no legal rights to any assets that are not in your name and your ex is likely to walk away with all savings and possessions built up out of their own money.

Death

Although couples don’t like to think about it, the death of a partner is something that should always be taken into consideration when planning for the future.

Indeed, it may not always be a break-up that brings a partnership to an end. If one half of an unmarried couple dies, the surviving partner will again have few legal rights to property and assets.

Unless your partner has made a will, you will not automatically inherit anything from them in the event of their passing, regardless of how long you’ve been together.

You will also receive no state bereavement benefit of a state pension based on a percentage of their National Insurance contributions as a husband or wife would.

Furthermore, anything you do inherit through your partner will is subject to inheritance tax if it totals more than the current £325,000 threshold, as spousal exemption will not apply.

What can you do to protect yourself?

If you and your partner decide not to get married, there are still several ways you can protect yourselves legally.

For example, if you are renting a home together, it makes sense to put both names on the tenancy agreement.

If you are buying a home with your partner, or moving into one he or she already owns, you need to consider whether signing as joint tenants or tenants in common is the best option, as there are different legal rights associated with each.

If you are joint tenants then you jointly own the entire property, whereas if you are tenants in common you each have a distinct share in the property and can decide in advance how you’d like this share to be split.

Drawing up a cohabitation agreement will also enable you and your partner to decide what will happen to your property and any other jointly-owned assets should you separate or suffer a bereavement.

A cohabitation agreement can also contain arrangements for child maintenance and custody if you have children together, as well as details of your responsibilities with regards to debts and everyday outgoings.

While cohabitation agreements are not legally binding, they can often be enforceable in court if a couple sought legal advice before signing it.

A court will take into account whether both parties understood the nature of the agreement, whether they were both fully aware of its contest and whether they intended that it should be legally enforceable.

You should also write a will to make sure yours or your partner’s assets will be distributed in the way you choose, rather than leaving the state to decide.

According to the latest research from Unbiased.co.uk, some 62 per cent of people in the UK have not yet written a will, and this includes married couples.

For cohabitees, will writing is arguably more important, because the laws of intestacy, or dying without a will, do not take cohabitation into account.

Instead of passing to you, as would happen if you were married, your deceased partner’s estate would automatically be passed to their relatives, unless they specify otherwise in their will.

Is the law likely to change?

If Lord Justice Sir Nicholas Wall’s calls are heard by lawmakers, it could be some time before legislation providing equal rights for cohabitees is passed.

New laws take time to pass through parliament and implementation can be a slow process. In addition, there will always be those who oppose such a law on the basis that marriage should not be given equal status as living together.

However, cohabitation remains a hot topic and, in the same way as same-sex couples in civil partnerships fought to gain equal rights with married heterosexual couples, cohabitees are also demanding legal protection.

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How to enable employees to work beyond 48 hours per week

Lawpack on March 27, 2020

Some jobs are just too demanding for the normal 48-hour working week rules to apply, making it necessary for employers to ask their workers to waive this restriction through a 48 hour opt out agreement.

Under government legislation, workers over the age of 18 cannot be told to work more than 48 hours per week, which can be averaged over a 17-week period in a system designed to protect people from over working.

However, there are instances where the necessity to work beyond these hours is paramount, particularly in emergency situations or during busier periods in the year when demand is exceptionally high.

Rather than being unable to meet these demands, employers can request their employees sign a 48 hour opt out agreement, but the decision to do this is at the employee’s discretion and it is illegal to force them to waive this right.

Applying the 48 hour rule

Workers can legally put in more than 48 hours in a week so long as the average over the 17 week duration remains at 48 hours or less.

Before getting an employee to sign a 48 hour opt out agreement, it is first worth noting whether you are already operating under circumstances where the law is not applicable.

For instance, the limit does not apply to jobs in the emergency services, armed forces and in some instances, the police. Domestic help in a private home might also be exempt from this rule, as well as those in sea faring roles such as fisher men and vessel crews.

So if these exemptions do not apply to the role your employee is in, then the only way to legally allow them to work for more than 48 hours in seven days is to have them sign the 48 hour opt out agreement.

Getting your employee’s permission

Just as it is the employee’s decision to sign the waiver, it is also their prerogative to cancel the opt out agreement whenever they choose, though they must give you a minimum notice period of seven days before they can reduce their hours.

It is also possible to agree a longer cancellation period with the employee before they sign the opt out agreement so that they are required to give you up to three months’ notice.

Defining working hours

Of course, the definition of work extends beyond the main duties of the role to other areas which come under the 48-hour restriction.

These include job-related travel, training and working lunches, as well as paid and some unpaid overtime.

The duration can also extend to work conducted abroad by the employee and always entails on-call hours the employee puts in.

Instances that are not covered under the 48-hour restrictions are lunch breaks unrelated to the job, normal travel to and from work and general travel outside of normal working hours.

A candidate pursuing evening and day-release classes not related to work cannot put these into their working hours either, nor can the time they spend on-call outside of the workplace.

If an employee volunteers to work for longer, such as to complete an ongoing project, this will not count towards the 48 hour quota and neither will paid or unpaid holiday.

Young workers

Restrictions on employers of people under the age of 18 are tighter so it is worth pointing out there is no opt out option for younger workers.

They are generally only allowed to work eight hours per day, completing no more than 40 hours in one week.

Getting it in writing

For more information on getting a 48-hour opt out in writing and to download a template, please see Lawpack’s solicitor approved Working Time Regulations 48-Hour Opt Out Agreement. ADNFCR-1645-ID-801325422-ADNFCR

 

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