July 2018 - Lawson West

Withdrawal of treatment for individuals in a Permanent Vegetative States: Can you prepare for the unexpected?

Posted on July 31, 2018 by Mike

A recent announcement means that judges will no longer have to be consulted to withdraw the treatment of a minimally conscious patient if both the patients’ family and the patient’s medical professionals are all in agreement. This decision has been a long time coming with people both for and against the decision. Following the Hillsborough Disaster and the case of Anthony Bland in 1993, it was ruled that the removal of treatment was legal where it was in the patient’s best interests, where it had previously been unclear.

In the most recent case, a gentleman referred to as Mr Y, was left in a Permanent Vegetative State following a cardiac arrest when he was just 52. It was mutually agreed by all his family members and medical professionals that he would not want to live in a Permanent Vegetative State as he had previously been a fit, healthy and active man.

Can you make any preparations for unexpected health complications?

You never know when a tragedy will strike, and therefore it is good to make necessary provisions just in case. Like insurance everybody hopes the need for it will never arise, but it is reassuring to know it is available if anything ever did.

Whilst everyone hopes nothing serious will ever happen to them or their loved ones it is important to make provisions before it is too late. If necessary plans are in place it makes the situation a lot easier and less complicated to deal with in amongst the emotional ordeal.

Creating a Lasting Powers of Attorney (LPA) is a good option to consider when deciding on what provisions to make for the unexpected. Preparing for an unexpected health complication ensures that decisions are made in your best interest. There are two types of LPA; one for Property and Financial Affairs, and another for Health & Welfare. Most people neglect making a Health and Welfare LPA, mainly because they do not fully appreciate the significance they hold.

This is telling in recent statistics. Only 928,000 people have registered a Health & Welfare Lasting Power of Attorney since 2007 in the UK since LPA’s were first introduced. This is, on average, less than 85,000 per year. To put this into context, this is less than 1/3 of the Leicester’s population (as per the 2011 census) having registered a Health and Welfare LPA. Find out more information on the Incapacity Crisis and the lack of Registrations of Lasting Powers of Attorney.

Making a Health & Welfare LPA would help in unexpected situations similar to that of Mr Y. They allow you to document your wishes as to how you would wish to be treated and outline what course of action should be taken in such situation (alternatively this decision can be left to the discretion of your attorneys). Furthermore, if there is any disagreement between the doctors and your family, then the appointed attorneys will have the legal authority to make decisions depending on what was written into your LPA.

Support with Lasting Powers of Attorney from Lawson West

Here at Lawson West, we know that these decisions are difficult. Nobody knows what lies ahead and many people like to ‘live for the moment’ without worrying about what ‘might’ happen in the future. Unfortunately, tragedies do occur and therefore if you are able to make suitable provisions that make the situation less distressing to deal with why wouldn’t you? We are able to offer our expert advice to help you make these decisions. We can include wording to cover situations like that of Mr Y to protect your family from further heartbreak and ensure that your wishes are granted not someone else’s. If you would like to discuss making a Lasting Power of Attorney, please contact us on 0116 212 1000, or email us here.

Should voluntary overtime be considered when calculating holiday pay?

Posted on July 31, 2018 by Mike

All workers are entitled to take holiday and must be paid the same amount of pay whilst on holiday as they usually would, had they been at work. Holiday pay must include overtime, bonuses and commission if they usually make up part of someone’s normal weekly pay.

Recently there has been a rise in the number of cases relating to holiday pay claims and this is mainly due to clauses within contracts that are limiting employees from using voluntary overtime as part of the calculations. The reason being voluntary overtime unlike other types of overtime is generally paid on a more ad-hoc basis and does not therefore contribute towards ‘normal pay’.

East of England Ambulance Trust Employment Tribunal.

A recent case is that of ambulance crew members belonging to the East of England Ambulance Trust. Many of their contracts had clauses in relating to ‘non-guaranteed’ overtime and ‘voluntary’ overtime and there was inconsistency among the crew members regarding the type and amount of overtime they worked. Their holiday pay claim to the Employment Tribunal was to appeal whether their calculation of holiday pay should take account of overtime falling within two categories, voluntary overtime and non-guaranteed overtime.

What is ‘non-guaranteed’ overtime?

Non-guaranteed overtime is also commonly referred to as shift overrun payments. These arise when, at the end of a shift, the employee is in the middle of carrying out a task which they must see through to the end. In the case of ambulance crew members this may be when caring for a patient to whom an ambulance has been dispatched or dealing with a call made to the emergency services. In such circumstances, the obligation to complete the task continues beyond the end of the designated shift. In return, the employee is entitled to payment for this additional time on shift.

These employees are also offered voluntary overtime, this is by its very nature voluntary and there is no contractual obligation for the ambulance crew members to perform it.

The tribunal held that the non-guaranteed overtime formed part of the claimants pay thus must be considered in the calculation of their holiday pay. By contrast, voluntary overtime was in a different category and therefore it was not felt necessary for it to be included.

After much debate and several hearings later, it was eventually ruled that payments for purely voluntary overtime should be included in holiday pay if they are regular enough to constitute ‘normal pay’.

How can Lawson West help with a Pay Claim?

If you find yourself having issues with pay, or holiday entitlement we can help. Please remember there are strict time limits in Employment claims and you should take good free legal advice as soon as possible.

In addition to No Win No Fee, Lawson West solicitors act for our clients on a variety of other funding arrangements including Legal Expenses insurance funding. We can assess your case to decide which is the best funding option for you.

With offices in Leicester, Wigston and Market Harborough our employment solicitors and lawyers can discuss your employment law claim at any of our branches. In addition, we are a national provider of expert employment law advice and welcome a free discussion with you regarding your circumstances and potential claim.

If you believe you have a situation where you require free legal advice, please contact us on telephone 0116 212 1000 or 01858 445 480, alternatively fill in our Contact Us form and we will get in touch as soon as possible.

Government Suggests No UK Employment Laws will be Repealed Post-Brexit

Posted on July 30, 2018 by Mike

The government has published a whitepaper, entitled “the Future Relationship Between the UK and the European Union”, in which it is proposed that there be no regression in the UK’s employment laws following its exit from the European Union.

UK Employment Laws Post-Brexit

Paragraph 123 of the government’s newly-released whitepaper proposes that there be no regression in employment laws following the UK’s official exit from the European Union, meaning that no EU laws will be repealed and that TUPE, working time regulations, collective consultation requirements, and a number of other laws pertaining to the UK’s discrimination legislation will not be repealed when we exit the European Union.

What is TUPE?

TUPE refers to the Transfer of Undertakings (Protection of Employment) Regulations 2006. These regulations protect the terms and conditions of an employee’s contract of employment in the event that a business of undertaking, or part of a business or undertaking, is transferred to a new employer. The TUPE regulations apply to businesses of all sizes and were put in place in order to protect both the EU’s employees and their rights.

What are Working Time Regulations?

The Working Time Regulations (1998), occasionally referred to as the “Working Time Directive”, state that the amount of time worked by an employee, including overtime, may not exceed an average of 48 hours in a given period, usually 17 weeks. There are, however, some exceptions to this rule and it can be opted out of. For example, you may be required to work more than 48 hours per week on average if you work in the armed forces, emergency services or police; you work in security and surveillance; you work as a domestic servant in a private household; you work somewhere that requires 24-hour staffing; or you work in a job whereby your working time is not measured (e.g. self-employment).

What are Collective Consultation Requirements?

Collective consultation refers to an employer’s obligation to consult staff representatives, as opposed to consulting with members of staff on an individual basis. There are two key situations in which an employer is required to consult with staff on a collective basis. These are the aforementioned transfer of undertakings (TUPE), or a proposed redundancy of over 20 members of staff. In the instance of redundancy, the collective consultation must take place over 30 days whereby 20-99 staff are to be made redundant, or 45 days whereby 100 staff or more are to be made redundant.

The Future of UK Employment Law

If the government’s whitepaper is to be believed, the employment laws mentioned above, and many others, will not be repealed or amended following the UK’s exit from the European Union.

Employment Law with Lawson West

If you are an employer or an employee and require further advice pertaining to your rights or those of your staff, please do not hesitate to contact Lawson West.

If you believe you have a situation where you require free legal advice, please contact us on telephone 0116 212 1000 or 01858 445 480, alternatively fill in the free Contact Us form and we will get in touch as soon as possible

The Incapacity Crisis and the lack of Registrations of Lasting Powers of Attorney

Posted on July 26, 2018 by Mike

An ‘Incapacity Crisis’ alert has recently been sounded by the organisation ‘Solicitors for the Elderly’ (SFE) after they published the findings of a study commissioned to research the gap between the volume of people suffering with mental incapacity and the number of people who have created a Lasting Power of Attorney.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA), is a legal document which can be made by anyone over the age of 18, who has the mental capacity to do so. It appoints another person, or persons, to make key decisions about your affairs. There are two types of LPA; one for decisions about your finances and property – to include everything that you own, and one for decisions about your health and welfare – to include everything else, such as your living arrangements, your medication, any operations etc.

We commonly refer to LPAs as alike to an insurance policy- if you need it, it’s there to help, but if you don’t, that’s even better!

Once a person loses mental capacity, their ability to make key decisions about their health and welfare or financial matters may also be lost, and should they not have created an LPA, they further lose control over who makes their decisions for them.

Current Statistics

The SFE report shows that the number of people diagnosed with dementia in the UK increased by over 50% in the years between 2005/6 and 2016/17. This figure now stands at 540,000. In addition, medical professionals believe that the volume of unconfirmed cases would see this figure rise closer to 850,000 if all those suffering symptoms were diagnosed. Unfortunately, a predicted 42,000 of those currently diagnosed are under 65.

Scarily, in 2016, dementia was the most frequent cause of death in women, and the second in men.

Volumes of Dementia sufferers are set to rise

The number of those suffering with dementia is predicted to rise steeply in the next decade, to a predicted one million diagnosed cases by 2025, plus another 300,000 undiagnosed cases. This is predicted to double to two million diagnosed cases by 2050.

However the crisis goes beyond this: the study found that only 928,000 health and welfare (H&W) LPAs have, to date, been registered with the Office of the Public Guardian (OPG) in England and Wales since they began in 2007. This volume suggests that there are nearly 12 million people at significant risk of dementia who are yet to make suitable arrangements for their decision making in terms of care, health and welfare in their senility. This includes the decision as to whether they move into a care home, or remain at home.

As the years pass towards 2025 and potentially 1 million dementia sufferers, this gap, if trends continue, will widen further to be over 13.2 million people at risk. The law states that once a person has lost mental capacity, they will not be able to appoint an LPA and if friends or family want to be able to make decisions on the person’s behalf, they will have to apply to the court for a deputyship order – both lengthy and expensive.

The benefits of making a Lasting Power of Attorney include:

If you are unable make decisions for yourself in the future, you have predetermined the decision maker or makers who you are able to furnish with your wishes.
Only the person or people who you know and trust that you have named as your attorney(s) are able to make decisions on your behalf.
Making an LPA now will make things easier for your friends and family in the future. Gaining authority to act upon your behalf when you are not able to freely give it, will be much more time consuming, costly and emotionally draining at a difficult time.
Deciding to create an LPA can be a good starting point to open discussions with your family about your preferences for the future.

It is hoped that the report by the SFE will heighten awareness of the disparity between the number of people who have LPAs in place and the number likely to need one in the future; largely through to a lack of awareness of the need for such a document to be in place.

Although there has been a significant increase in the number of financial LPAs submitted to the OPG, there is still a taboo around medical decisions and end of life care, which really needs to be dismissed. It is hoped that on the back of this study, health and welfare LPAs become as much of a dinner table discussion as financial LPAs with volumes of uptake increasing in line with the financial documentation.

Why should I act now and create a Health & Welfare Lasting Power of Attorney?

Although conversations about end of life choices are important, even with written consent or email trails, nothing provides tighter control than a legal document stating exactly who has the right to make decisions on your behalf should you no longer be able to make the decisions yourself. In fact, only a Lasting Power of Attorney confers authority for your family to act; unfortunately, written consent is no longer enough.

If you have been reading this article, or have been forwarded it from a friend or family member, perhaps now is the time to act. Life is busy and the to do list fills quickly. We urge you not to drop this to the bottom of your list. If you are ready to consider organising your LPA for Health & Welfare, or finances – or both, in the first instance please contact our Planning, Protection and Probate team on p3team@lawson-west.co.uk or by calling 0116 212 1000. Alternatively, leave us a message here.

Month: July 2018