Breaking Good – Episode One: Demystifying separation and divorce, present and future
27 November 2020
Podcasts and videos
Comedian Marcus Brigstocke teams up with leading family lawyer Jo Edwards and members of Forsters’ Family team to demystify the divorce and separation process. An informative and entertaining guide to modern family law.
In the first episode of our new podcast series, Marcus and Jo are joined by top family lawyer Rosie Schumm to talk about common misconceptions about family law, divorce during COVID and the lure of Ally McBeal…
You can listen to more episodes of Breaking Good and the More Than Law podcast here on our website, as well as subscribe on your favourite podcast services, including:
To continue the conversation on social media, use #ForstersBreakingGood.
Leading divorce and family law experts – How can we help?
Known for the highest quality service and achieving the best results for our clients, our focus is always on the needs of each individual. Our top ranked Family team will take the time to understand each client’s unique personal situations – and we work with them to develop the course of action which best suits them.
We cover the full range of family law matters including pre and post nuptial agreements, separation arrangements, matters involving children, financial issues and divorce for clients both in the UK and overseas. In addition, we are experts in mediation and collaborative law.
Coming to a decision to separate or divorce is difficult and often distressing. For many, the process that lies ahead is a mystery and it is assumed that it will be confrontational and drawn-out. However, there is in fact a wide range of forward-thinking, constructive approaches to resolving the issues flowing from your divorce or separation.
New podcast: Breaking Good – Rethinking Separation and Divorce
27 November 2020
News
Introducing Breaking Good, the new Forsters’ podcast. Comedian Marcus Brigstocke teams up with leading family lawyer Jo Edwards and members of Forsters’ Family team to demystify the divorce and separation process. An informative and entertaining guide to modern family law.
In the first episode of our new podcast series, Marcus and Jo are joined by top family lawyer Rosie Schumm to talk about common misconceptions about family law, divorce during COVID and the lure of Ally McBeal…
Co-hosts Marcus Brigstocke and Head of Family, Jo Edwards are joined by up-and-coming family lawyer Jamie Gaw to talk all things no fault divorce, set to take effect in 2021. They dissect all that’s wrong with the current divorce system, the arguments that led to change, how the new law will operate in practice and some rather unusual behaviour particulars (one spouse cooking another spouse tuna casserole every night being one)…
Co-hosts Marcus Brigstocke and Head of Family, Jo Edwards are joined by preeminent family lawyer Simon Blain to talk about how to prioritise children’s needs during separation and divorce. They explore how parents can best work together to protect children from any fall-out, the different and creative child arrangements they have seen, how to take account of a child’s wishes and the kindness of surrogate mothers.
Co-hosts Marcus Brigstocke and Head of Family, Jo Edwards are re-joined by family lawyer Rosie Schumm to talk all things nuptial agreement-related. From debunking some common myths, to sharing tips on how to broach the subject with your other half, and discussing why they aren’t as unromantic or as new a concept as you might think – it’s all here.
Co-hosts Marcus Brigstocke and Head of Family, Jo Edwards are joined once again by Rosie Schumm to talk about going to court to sort out money issues on divorce. They explore when involving the court is the right thing to do, the process, what powers the court has and why it’s usually not as melodramatic as movies would have us believe….
Co-hosts Marcus Brigstocke and Head of Family, Jo Edwards are joined by preeminent family Barrister Matthew Brunsdon-Tully to discuss the challenges facing separated parents during the pandemic and tips on how best to resolve the issues, drawing on experience of the common questions that have arisen.
To continue the conversation on social media, use #ForstersBreakingGood.
Leading divorce and family law experts – How can we help?
Known for the highest quality service and achieving the best results for our clients, our focus is always on the needs of each individual. Our top ranked Family team will take the time to understand each client’s unique personal situations – and we work with them to develop the course of action which best suits them.
We cover the full range of family law matters including pre and post nuptial agreements, separation arrangements, matters involving children, financial issues and divorce for clients both in the UK and overseas. In addition, we are experts in mediation and collaborative law.
Coming to a decision to separate or divorce is difficult and often distressing. For many, the process that lies ahead is a mystery and it is assumed that it will be confrontational and drawn-out. However, there is in fact a wide range of forward-thinking, constructive approaches to resolving the issues flowing from your divorce or separation.
Podcast host, Miri Stickland, talks to Construction partner Andrew Parker, associate Dan Cudlipp and Property Litigation associate Sarah Heatley about the findings and recommendations so far from the ongoing Grenfell inquiry, new legislation coming forward in the form of the Building Safety Bill, practical issues being encountered on sales and refinancings of high-rise residential units and what options may be available to cover the costs of any remediation works required.
“Phase 2 of the Grenfell Inquiry is going to be particularly important for the construction industry by shining a light on how materials are tested, what design choices should be made and identifying where there are flaws in the current regulations.”
“The Building Safety Bill will be a significant piece of statutory reform, with the current legislation no longer fit for purpose, especially in respect of residential occupants. Leaseholders and occupants of residential blocks are the primary focus of the Bill, which introduces the new role of an Accountable Person, clarifies that cladding and wall systems do form part of the common parts of the building and introduces a new category of service charge with the concept of building safety charges. Overall, the Bill makes it much clearer as to what owners need to do to keep residents safe and easier for occupiers to compel owners to investigate and fix cladding.”
“Sometimes there is no obvious recourse for cost recovery from third parties and there are areas which the Government funding doesn’t cover, for example, where a waking watch is required to be put in place to ensure residents’ safety. Building owners will need to think carefully about whether these costs are recoverable from leaseholders and be mindful of the residential service charge consultation requirements.”
Podcast host, Miri Stickland, is joined by Head of Planning, Partner Victoria Du Croz, and senior associate, Laura Parrish, to discuss the impact of recent changes to the Use Classes Order and Permitted Development Rights as well as further planning reforms which are still to come.
Planning Reforms: True revolution or plus ça change…?
13 November 2020
Podcasts and videos
Podcast host, Miri Stickland, is joined by Head of Planning, Partner Victoria Du Croz, and senior associate, Laura Parrish, to discuss the impact of recent changes to the Use Classes Order and Permitted Development Rights as well as further planning reforms which are still to come.
“Some clients are really happy with the increased flexibility the new Use Class E offers in terms of how they can use their space. Other landlord clients have been concerned that tenants are able to change the use of their properties without the need for formal planning permission or prior approval from the planning authority. For example, there is now far less control over change of use from retail to restaurant use, which we anticipate could lead to a rise in nuisance claims.”
“One of the key industry concerns in respect of the new Permitted Development Rights is that it will allow housing to be brought forward without mitigation of the impact of the change of use of those buildings. Local Authorities will be very limited in respect of the conditions that they can require, in particular in terms of not being able to impose affordable housing quotas, section 106 or CIL payments.”
On 17 November 2020, Lord Justice Lewis and Mr Justice Holgate dismissed the Judicial Review challenge to the government’s recent changes to permitted development rights and use classes on all grounds.
The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (SI 2020 No.757) were introduced by the government on 20 July, and take effect on 1 September 2020. The new Regulations make radical changes to the 1987 Use Classes Order. These changes sit alongside the recent additions to permitted development rights, forming part of the government’s “Project Speed”, with the aim being to support the high street revival and allow greater flexibility to change uses within town centres without the need for express planning permission.
With corporate activity starting to increase, we thought it would be useful to consider some of the key employment aspects that can arise on a corporate transaction.
How do staff transfer to the buyer?
On a share sale, staff will generally be employed by a target company and the employment contracts will simply remain with the acquired target company following closing; in practice, nothing really changes from the staff’s point of view. It is important, therefore, that parties check that employees are properly employed by the target company (and not, as is sometimes the case, another non-target group company for legacy reasons).
Where a business is being acquired by way of an asset sale, employees will usually automatically transfer to a buyer entity under what’s commonly referred to as “TUPE”. In practice, employees ‘attach’ themselves to the business and automatically move with it on their same terms and conditions of employment and maintaining their continuous service. There are also restrictions on the buyer preventing it from trying to amend their terms and conditions of employment and terminating their employment.
Where TUPE applies, it is important that both the buyer and seller comply with their respective duties under the TUPE regulations, which, amongst other things, requires them to carry out an information and consultation process with affected staff. This can involve consulting with trade union representatives (if applicable) or electing a body of employee representatives and can take around one month.
Identifying key employees
Identifying the key employees will be vital.
The seller will want to ensure that it has identified a key team who can assist with the sale and stay with the business so as to be attractive to a buyer (given their knowledge and connections). The buyer will want to ensure that it acquires a key team who are engaged and ‘locked-in’.
It is common for the key team to have retention arrangements in place to incentivise them to stay with the business and work for a minimum transition period. The buyer might also want to further incentivise them by agreeing a management incentive plan, such as shares or options in the target company.
In addition, a buyer will want to know the terms on which the key employees are employed under. It is important, for example, that key employees are subject to:
Sufficient termination provisions and notice periods.
Robust confidentiality and intellectual property provisions.
Post-termination restrictions (e.g. Non-compete and non-poach provisions).
It is also important to understand what their commercial terms are (such as salary and agreed bonuses).
Where key employees do not have appropriate employment contracts in place, it is common for the parties to agree that new contracts are signed at closing.
Departing senior employees
It is often the case that senior employees and directors leave the business as part of a corporate transaction. In those circumstances, having them sign standard waiver and release agreements (under which they release any employment claims (such as for unfair dismissal)) is a good idea.
General employment issues
Through the due diligence process, it is important for the buyer to understand the general employment position to identify any claims and potential liability. This will include understanding:
The general terms on which employees and consultants are employed or engaged.
Any special arrangements, such as enhanced redundancy pay rights and contractual bonuses
Whether there are any recognised trade unions and, if so, what the relationship between the unions and the target business are like.
Whether there are live HR issues or live or threatened employment claims.
Whether the target company has utilised any government schemes during the COVID-19 pandemic (such as the furlough scheme) and, if so, the way it has used them.
It is important that these risks and liabilities are mitigated (to the extent commercially possible) through warranties and indemnities in the transaction documents.
Transition arrangements
It can often be the case, especially in the context of a “carve-out” deal, that the target business receives services from a central seller support function. This can typically include HR support, IT support and finance. The buyer will likely want the target business to continue to receive such support for a period after closing to allow it to make its own arrangements. Thought will need to be given as to how this support shall be staffed. It might be the case that support staff who are solely dedicated to the target business will transfer to the buyer at closing and such staff will therefore need to be seconded back to the seller to provide the transitional support.
Overseas employees
Where a business has employees based in other jurisdictions, it is important to take local advice. For example, in the US and in many Asian countries, there is no equivalent to the TUPE rules; therefore, if the transaction is structured as an asset sale, those employees will need to accept new employment contracts with the buyer and consideration will need to be given as to how any severance payments that are triggered as a result of the technical dismissal and rehiring are dealt with.
In addition, some countries (especially in Europe) have far stricter information and consultation requirements, including on share acquisitions. In France, for example, a business’ works council must be consulted about any proposed acquisition and given a one- to three- month period in which to pass its opinion: this often needs to happen before any transaction document is signed.
If you have any queries about this article or employment law in general please contact Joe Beeston, Senior Employment Associate, in our Employment team.
Disclaimer
This note reflects our opinion and views as of 9 November 2020 and is a general summary of the legal position in England and Wales. It does not constitute legal advice.
Many employers have sadly needed to make redundancies in recent months due to the pandemic and with the Coronavirus Job Retention Scheme coming to an end at the end of October 2020 and the new Job Support Scheme only filling part of the void, this trend will likely continue. This article provides a useful summary of the key considerations for employers who are contemplating a headcount reduction.
From growing a business to starting a family or handing over control of that business to the next generation, every individual has their own goals to aspire to. Our Private Wealth lawyers advise our clients throughout this family life cycle, providing the legal advice required for specific transactions such as purchasing a home or selling a business, whilst also advising on the long-term opportunities for succession and estate planning.
