6 Things You Need to Know About Prenuptial Agreements

By Sarah Perkins

With Spring underway, the days are getting longer, the weather is getting warmer and wedding season begins!

Changes in society continue to affect people’s attitude towards marriage and particularly around prenuptial agreements.

The average age at first marriage continues to rise into the mid 30s. With people marrying later, they bring assets they have accumulated or inherited into the marriage that they may want to protect.

Women are prioritising their careers first and starting families later, which contributes towards the trend of putting these measures in place ahead of saying ‘I do.’

Discussing finances with a loved one can be a particularly sensitive issue and nobody plans for a marriage to end, but it is important to plan for any eventuality.

To help figure out if a prenuptial agreement is for you, below are six things you need to know about prenuptial agreements.

  1. What is a prenuptial agreement and is it a legally valid document in England and Wales?
    A prenuptial agreement consists of a formal written agreement which is entered into between the partners to the relationship ahead of the marriage. It outlines what each party is entitled to should the marriage end, as well as any other related conditions.
  2. Why should couples consider getting a prenuptial agreement?
    Both parties should consider a pre-nuptial agreement for the simple reason that it provides peace of mind going into the marriage that all aspects of their finances, assets and property are protected. It isn’t a matter of trusting each other, but rather a matter of being responsible and planning for your own future, for any eventuality. It can also protect one partner against the other’s debt, protect inherited assets or children’s inheritance, and ensure control over business assets.
  3. How can a solicitor help someone make a prenuptial agreement?
    A solicitor can ensure the prenuptial agreement is drafted properly. This makes it more likely the agreement will be upheld in a divorce. The agreement should be carried out at least 28 days ahead of the wedding to ensure that all matters are resolved by the ceremony. Allow as much time as possible to ensure all matters are thoroughly considered, negotiated and signed without any unnecessary pressure.
  4. What should someone do if they’re asked to sign a prenuptial agreement?
    Before signing, you should seek advice from a qualified solicitor. This doesn’t mean that you do not trust your partner, but it is important to protect your own interests as well as your collective interests. Ensure that the agreement takes your circumstances into consideration and is much for your own good as it is for your partner’s.
  5. What should be included in a prenuptial agreement?
    It is best to assess this on a case by case basis as it is largely related to the value of the item to the individual, both from a financial and sentimental perspective. There aren’t specific rules for what should not be included, but rather just as much is discussed and agreed as possible, and nothing is left to chance.
  6. What happens during a divorce if the couple has a prenuptial agreement?
    In the event of a breakdown in the marriage, couples will divide ownership of their belongings based on the prenuptial agreement.Generally, assets are divided 50/50 among both parties in the event of a divorce that doesn’t involve a prenuptial agreement. However, that may feel unfair to you if you have inherited assets, you own a business, or if your partner has outstanding debt.

How we can help:

For more information on prenuptial agreements, get in touch with our dynamic team in family, matrimonial and childcare law directly via:

Telephone: 0333 231 6405

Email: family@cjch.co.uk

CJCH wins at Cardiff Life Awards

We are delighted to announce that, at the grand Cardiff Life Awards ceremony at Cardiff City Hall last night, CJCH took home the award for Legal and Financial business of the year for 2019.

Our team is thrilled to have received this accolade and for the recognition of being a leading business serving our community.

The notes from the judges were:

” A solicitor’s firm with a genuine difference. Strong demonstrable growth, innovative and forward-thinking use of technology, and an inspirational outreach programme for schools and charities.”

As always, we have our fantastic team to thank, who put in all the hard work and dedication to everything we do. We would also like to thank Emma and the team at Cardiff Life Magazine, the Judges, and all the wonderful sponsors like Jelf, Cardiff Airport, and FOR Cardiff.

Tips for First Time Buyers: the Conveyancing Process Explained

Lauren Powell has joined the Residential Conveyancing and Private Client team here at CJCH and wanted to share these tips for first-time home buyers:

As a first time buyer, the legal process of purchasing a property (known as conveyancing) can be a confusing and stressful time.

At CJCH Solicitors, our dedicated team of solicitors are here to make the process as straight forward and stress-free as possible. We have created a brief guide to the steps of the conveyancing process and some of the terminology that is often used to give first-time buyers an initial understanding of the process.

For further information or for a competitive quote for our legal services, please contact a member of our team.

  • Step One: your offer is accepted

Congratulations! You have found your property and agreed on a purchase price with the seller.

It is at this stage that the estate agents, seller or developer (in the case of new build properties[1]) may ask for the details of the solicitor you have decided to instruct to act on your behalf.

At CJCH Solicitors, we pride ourselves on providing prompt service. We ensure that once we have provided a quote and agreed our fixed fee[2] with you, we send confirmation of our instruction to you as soon as possible. As this is likely to be the most important financial transaction of your life, it is vital to ensure you choose the right solicitor. A cheap service can often mean a poorer quality service!

Our quote will include information on whether any stamp duty land tax (which applies to properties in England) or land transaction tax (which from April 2018 applies to properties in Wales) is likely to be payable.  The rules can be complex, so a chat with one of our team is advised to ensure you know upfront what the costs are likely to be.

At this stage, we also request the contract pack[3] from the seller’s solicitor.

  • Step Two: apply for a mortgage/funding your purchase

If you require a mortgage to purchase the property and you have not already made arrangements, it is important to make an application for a mortgage to help fund the purchase and ensure you obtain your agreement in principle[4] as soon as possible.

For new build properties, a Help to Buy Equity Loan[5] in addition to your mortgage could also be a possibility for you. It is best to seek financial advice before agreeing to any mortgage or loan, to ensure you choose the best option for you.

Your lender will request the details of your solicitor. You should receive a copy of your mortgage offer and your solicitor will also be sent a copy by your lender. Your solicitor will normally also represent your lender during the process.

  • Step Three: survey and searches

It is always advisable that you commission a survey to ensure a detailed physical inspection of the property is carried out by a professional surveyor to highlight any potential issues. Although this is an extra cost to you, it can save you discovering any nasty surprises in the future!

Please note that if you are purchasing with a mortgage, it will not be enough to rely on your lender’s valuation report as this is done to satisfy your lender that the property is sufficient security for their loan.

Your solicitor will also order search reports[6]. Searches are normally carried out with the local authority, water and drainage provider and an environmental search is usually done (some additional searches can be required depending on the property itself).

Your solicitor raises any enquiries they feel necessary with the seller’s solicitor based on the information provided in the contract pack at the beginning of the process, the search reports received your survey report and any questions you may have for the seller from your physical inspection of the property. When the seller answers the enquiries satisfactorily, it is the time to agree a completion date[7] with all parties involved.

  • Step Four: exchange of contracts

Before the day of completion, a process known as ‘exchange of contracts’[8] will take place. The time in between exchange of contracts and the day of completion does vary depending on the circumstances of both the seller and the purchaser (and whether there is a chain[9] involved).

Exchange of contracts is a process that takes place over the phone between the seller’s solicitor and purchaser’s solicitor. Exchange of contracts is the point whereby you become legally bound to purchase and is designed to provide security that completion goes ahead on the agreed date. It is at this stage that you forward your deposit, normally 10% of the purchase price. If you withdrew from the purchase after the exchange of contracts, the deposit is forfeited to the seller. The seller can also face penalties if they withdrew from the sale after the exchange of contracts. Although, parties withdrawing after the exchange of contracts is very rare.

Before exchange of contracts can take place, you will normally meet with your solicitor to sign the necessary documents. You will also be given information on how to transfer the deposit funds to your solicitor, which your solicitor needs to receive before exchange of contracts. Your solicitor will also request your mortgage funds directly from your lender to ensure they arrive in time for the agreed completion date.

  • Step Five: completion

On the day of completion, the seller vacates the property (if they have not already done so).

Your solicitor will send the purchase funds to the seller’s solicitors and, on receipt of the funds, the seller’s solicitor will notify your solicitor that the keys can be collected.

The keys are normally collected from the acting estate agents’ office and completion usually takes place around lunchtime, though it will depend on when the funds are received by the seller’s solicitor.

  • Stage six: post-completion

Your solicitor will see to the filing of a stamp duty land tax return to HM Revenue and Customs (HMRC) or a land transaction tax return to the Welsh Revenue Authority (WRA) and the payment of any tax that is due on your behalf.[10]

Your solicitor will also register the property in your name with HM Land Registry[11]. When registration is completed, your solicitor will send you an updated version of the title to the property, showing you as the registered owner. If you are purchasing a leasehold property[12], the lease will be registered in your name.

This is often also an important time to consider whether you should make a Will to ensure your property, along with any other assets, would pass in accordance with your wishes. For more information on our Will drafting services and fees, please contact a member of our Private Client department.

Notes:

[1] New build properties are properties that are to be, are in the process of, or have just been built by a developer. The conveyancing process is slightly different when you are purchasing a new build property. Please contact our team for further information.

[2] At CJCH Solicitors, we offer a fixed fee service for conveyancing with no hidden costs. This means that the quote for our legal fees will be for a fixed amount and will not increase, provided no unforeseen work is required (if it is, we agree any further costs with you beforehand).  

[3] This will include information on the title to the property, the sale agreement, and forms completed by the seller providing details about the property and its fixtures and fittings, together with supporting documents.

[4] An agreement by your lender to lend a certain amount to you based on the information you have supplied at that stage. A formal application will need to follow to the lender before they formally grant you the loan.

[5] This is a government scheme which could help fund up to 20% of your new build home, leaving you with a 5% deposit to pay (rather than a 10% deposit which is normally required) and a 75% mortgage. There are different rules that apply to properties in England and properties in Wales (Help to Buy and Help to Buy Wales are separate organisations). Please contact us for further information.

[6] Search reports are carried out through an independent search provider. The searches can provide essential information on issues such as the property’s highways, connections to the sewage and water drainage systems, flood/contamination/subsidence risks and planning permission and building regulation documents relating to the property, to name just a few.

[7] The completion date is the date that you finalise the purchase and are able to collect the keys to the property.

[8] You will need to ensure you have a buildings insurance policy in place for the property for this date.

[9] This is where there are a number of linked sales and purchases that are all reliant on one another to complete. Naturally, the longer the chain, the longer the conveyancing process tends to take.

[10] For most purchases, there is a duty to inform HMRC or the WRA of the purchase via a return, even if no tax is payable.

[11] An organisation that registers ownership of property and land in England and Wales.

[12] This is where you have an agreement with a landlord called a lease that, amongst other things, will state how long you will have ownership of a property. The landlord is often the person/organisation that owns the freehold title to the property. At the end of the lease, ownership returns back to the landlord. If you own a freehold title to a property, you basically own the property outright.

CJCH Solicitors – Wales Legal Awards Finalist for Corporate and Social Responsibility segment

The team here at CJCH Solicitors were beaming recently when we learned of our firm being named a finalist in the Legal and Financial category of a leading local awards initiative. Our excitement has more than doubled when it was recently announced that our firm had also been listed as a finalist in the newly established Wales Legal Awards in the category of Corporate and Social Responsibility Programme of the year.

Our CSR initiative is lead by our senior partner, Jacqui Seal, together with a team of our staff. In 2018, our programme included on-going support for main charity, Y Bont school for children living with disabilities, who we partner with to support their events, conduct fundraising initiatives on their behalf and generally offer our support where we can.

Other initiatives we have taken on in 2018 have included:

  • Developing a campaign to raise £3000 to donate to Huggard centre for the homeless.
  • Exceeding our 2017 milestone by raising over £2000 on behalf of Will Aid charity when our private client solicitor team donated their time to provide Will drafting services to the public in exchange for donations to the charity.
  • Donating time and support to the Recovery Cymru initiative. 
  • We also worked with family and lifestyle blogger, Cardiff Mummy Says, to provide legal insights and awareness for various family-related matters over the last year.

We are proud to be representing this category of the awards, as the ethos of the CJCH legal practice is to always give back to the communities in which we provide services.

Senior partner Jodi Winter praises improved gender equality and encourages legal sector not to become complacent

CJCH Solicitors’ Jodi Winter says it’s “incredibly motivating” to see more women achieving senior roles across the legal profession, but encourages business leaders to keep the momentum going to ensure continued gender balance.

Jodi, who last year was appointed to our award-winning firm’s executive board, said she was delighted to see that 33% of partners across the legal sector were now women, according to a report from the Solicitors Regulation Authority (SRA).

The findings from the SRA also showed that 48% of solicitors surveyed across the UK are women, a statistic which Jodi said reflected the industry’s progressive nature.

Jodi, who is a senior partner and head of the Family and Child Law Department, is speaking out on female inclusion to mark International Women’s Day on March 8th.

The worldwide initiative, which celebrates and recognises the personal and professional achievements of women, is this year focussing on the theme of gender balance.

Jodi feels this topic is particularly vital in an industry such as hers, which is traditionally perceived as being male dominated.

CJCH Solicitors is challenging that misconception and has proved that it’s leading the way when it comes to achieving greater gender equality. The firm’s executive board is now comprised of 50% women, following Jodi’s appointment in January, while its senior management team was also female driven.

CJCH notably has a higher rate of female employees than male, and attracted a large number of talented female graduates from across Cardiff and the surrounding areas.

On the issue of gender balance in the legal industry, Jodi said she is proud to be part of an award-winning firm which is leading by example in relation to inclusivity.

She said: “Becoming a partner and executive board member at CJCH this year has undeniably been the highlight of my career to date.

“But what makes me more proud, is to be appointed to this position within a firm which truly values and recognises the talent and potential of its female employees.

“While I was a trainee solicitor you frequently saw men ascending through the ranks and being given opportunities in higher leadership roles. Over time there has been a gradual shift in attitudes towards gender balance, which has is undeniably more positive and has paved the way for solicitors, such as myself, to really achieve their potential and undertake rewarding leadership positions.

“However, I think gender equality in the legal sector was truly affirmed and accepted with the appointment of Lady Hale as president of the Supreme Court, which is a landmark achievement for equality and diversity in the profession.

“While this increased inclusion is absolutely fantastic, and I am personally delighted to see more women occupying more decision-making roles, I do feel that we as an industry cannot afford to become complacent.

“Such incredible progress has been made over the years, with the SRA now showing that 33% of partners across the sector are female, that we cannot afford to stop investing in and support female equality at this stage.

“It’s vital that business leaders across the UK continue to support women throughout the industry and keep this momentum moving in the right direction, and encourage them to pursue enriching leadership roles, which not only benefit them but the sector as a whole.”

Licence Compliance: Stopping digital infringement behaviour

Repost from CJCH Consulting.

At CJCH, we have established ourselves as world leaders in an industry which is still gaining public awareness and understanding. As a Firm, we have developed an innovative and systematic approach to not simply identifying an incident of software piracy, but to manage that process through the full lifecycle of enforcement to licence compliance and the recovery of lost revenue for our clients, the copyright owner.

Getting to know the terms

Terms such as “anti-piracy” and “licence compliance” might seem to be counter-intuitive, but in reality, are quite straight forward. Anti-Piracy is the process of instituting countermeasures to piracy. In our industry, piracy does not mean eye-patches and cannon battles at sea. Rather, it refers to the reproduction or unauthorised use of someone else’s work or innovations.

Physical copyright infringement, such as reproduction of clothing, is commonly known as counterfeiting. When it comes to the digital arena, such as computer games and software, we refer to this as piracy.

Licence compliance” is a term used to describe the process which follows on from the identification of infringement activity. The licence is the right the software developers give to the users which allows them to use the product they have developed in a specific way or format. These details are usually outlined in a “ULA” or user licensing agreement. Terms will vary depending on the developer, but any user who uses these products is agreeing to these terms when they install and/or use the software. The terms usually include the number of times the product may be installed on a device or number of devices it may be installed on. They may also relate to the number of users who may use a single licence, the location the licences may be used in, or the primary function the licence may be used for, i.e. personal, academic, or commercial use.

Therefore, licence compliance is the process by which the owner of the copyright takes action to enforce their copyright and require an unauthorised user (someone who is using a fake, copied, or cracked version of their product without paying for it) to pay for the licence and usage that they have benefitted from.

What is a Raid?

In a field shrouded in misperceptions and deception, we often come across infringements that, for various reasons, such as the scope of the violation, require a more direct and tactical intervention – an on-site inspection ordered by a law-enforcement authority (often informally referred to as a Raid).

As mentioned above, copyright infringements constitute a violation of intellectual property rights. Due to the intangible nature of computer programs, there are mechanisms which allow for software infringements’ traces to be easily hidden or deleted by the infringer. This makes it very difficult for the right holder to enforce their rights and consequently could result in the infringer being able to avoid liability. 

An on-site inspection is an approach we use which helps to avoid these risks. An unexpected inspection on the premises on the infringer, ordered by a law-enforcement authority enables the right holder to obtain and/or secure the evidence of the software infringements currently being used and has proven a very effective remedy. 

How can this be implemented?

Around the world, the legislation of various nations usually provides the possibility to obtain an ex parte / Inaudita parte order (meaning it is in the interest of one of the parties to the matter) for the inspection which will be granted by the relevant authority (court, prosecutor, police…) depending on the jurisdiction. Once this order is obtained, and following the regulations of that particular jurisdiction, an inspection is conducted, usually under the supervision of local law enforcement, to inspect the premises of suspected infringements. 

Access to the premises is granted, by order of the authority, and the inspection is carried out. All computer devices and IT equipment are inspected, and evidence of unlicensed software use is gathered/or preserved.

On-site inspections are a legal process which we manage on behalf of our clients and is a service which has allowed many of our clients to expose large volumes of unlawful use of their products which have been stolen from them. 

CJCH have a dedicated on-site inspection team which are strategically placed to observe and monitor our client’s usage data. To date, they have managed the legal process relating to on-site inspections for a number of cases and have recovered in excess of €1 million in revenue for our clients (with up to a further €1 million in pending action).

CJCH Solicitors – Cardiff Life Awards Finalists

We are proud to announce that for a second year in a row CJCH Solicitors has once again named a finalist in the prestigious Cardiff Life Awards. Our firm is honoured to server our community and delighted to be in the Legal and Financial category.

We are also excited to see the caliber of our fellow nominees, as we are sharing the spotlight with some phenomenal local and national brands that make up the 2019 Cardiff Life Awards finalist list.

We look forward to celebrating with all the guests at the gala event at Cardiff City Hall in March.

From academics to the office – an inside look at Cardiff’s latest graduate scheme

“I don’t think any of us really knew what to expect when we started the graduate scheme.”

That was the admission made by Charlotte Bardet about joining the landmark new graduate scheme launched in Cardiff.

Charlotte, like many graduates, was keen to make the transition from university to professional life but was apprehensive about swapping academics for the office.

With thousands of graduates facing this prospect every year a professional scheme which bridged the gap between study and work seemed like the ideal solution.

With that in mind chief of staff, Luke Heydenrych, worked with the senior partners of CJCH Solicitors and Consultancy to design and launch its innovative Graduate Development Program in February 2018, which aimed to expose candidates to essential commercial and business skills at an early stage in their career.

Back L-R: Tim Hartland (Managing Partner), David Kirby, Myles Thomas, Sam Evans Front: L-R: Amy Palin, Charlotte Bardet, Daniel McNiell, Stephan Clarke (Senior Partner)

Charlotte, who joined the specialist law firm and consultancy in 2016 as an anti-piracy research paralegal, was one of six young candidates who joined the scheme’s first intake this February.

On her preconceptions about what the landmark scheme would involve, she said: “I knew I would learn a lot about business acumen and best practice and gain various skills related to crisis management and design thinking. However, I never anticipated the type of exposure it would offer me and the opportunities I would get so quickly.”

For Charlotte, her first few months in the bespoke program proved to be extremely surprising.

She said: “It was really encouraging to see the amount of trust senior management put in us. On joining the firm, you might worry that you’ll simply play a supporting role, but at CJCH this was not the case.

“They trusted us with massive projects for the firm and allowed us to run with them, which was unexpected, as you never know how much you’ll get to experience early on, but it was really humbling and exciting too.”

Charlotte, who previously interned with the United Nations, was assigned to a team developing an international course on illicit trade in collaboration with an international law enforcement training organisation.

This forms part of CJCH Consulting’s fight against international software piracy, which was highlighted when the firm recently hosted digital crime experts from around the world as part of the  IP Wales Cluster in Cardiff.

The graduates’ research will now form an integral part of the firm’s strategy to prevent the illegal usage and theft of intellectual property in the future.

She said: “To be working on a project that is so vital to the firm’s ongoing aims is really interesting.

“As part of the illicit trade project my team and I liaised with universities, worked alongside experts in the intellectual property and legal professions, and finally presented our findings to the firm’s senior partners. I have been far more involved than I could have anticipated.”

Thanks to her dedication to the project, Charlotte saw herself quickly promoted shortly after joining the graduate scheme, which offers a diverse approach to gaining both commercial and legal understanding of the profession.

She said: “I was delighted to be promoted to research supervisor so quickly, where I supervised a team of about 28 researchers. There was definitely a learning curve to the management side of the job, and the knowledge I acquired on the graduate program was extremely beneficial in settling into this new position.

“Knowing that the partners and managers in our department trusted that I could handle the job and manage such a big team, was such a great boost of confidence in my work and showed me that there was possibilities for future career progression.”

Following her promotion, she was quickly afforded even more exciting opportunities, which would see her use her skills on an international level.

“To my surprise I was invited to go to Boston for a business trip to meet with one of our partner firms for a few brainstorming meetings. I was extremely pleased and honoured to be involved in this. It was a great learning experience and made me feel very valued.”

After the whirlwind start to her Graduate Development Program, she has now taken on a larger workload as continues to thrive in her role.

She said: “My workload has obviously increased since I started, but it has all been really interesting.

“I slowly took on more and more responsibilities, from training to quality checking, offering expert analysis and feedback to our client. The whole experience has been so informative and rewarding.

“Before joining you really don’t know what to expect, but this has certainly exceeded any expectations I had. It’s been an invaluable experience so far and I would recommend it to any of my colleagues and anyone considering applying for a training contract.

“One of the best pieces of advice a colleague gave me early on was ‘if you want to see change happen, take the initiative to make it happen’, and I really feel I’ve been able to make things happen.”

CJCH Solicitors’ Graduate Development Program is a 12-month initiative, the first instance of  which concluded with the final training session this month. The Graduates now present to the executive board of CJCH to close off their training. The program offers graduates the opportunity to develop a wide-range of business and legal skills. The course sees candidates taught social entrepreneurship, innovation principles and practice, communication strategy, crisis management, leadership, and customer relationship management.

This unique approach aims to develop well-rounded and innovative team members who will work throughout the firm’s legal, and non-legal, departments with the aim of undertaking leadership roles in the future.

Expert speaks out on everything you need to know about a Blue Monday job crisis

Blue Monday is considered to be one of the most depressing days of the year for every-day working people.

It’s a day that often leads to self reflection, and encourages many to question life and relationship decisions, but more commonly work-related choices.

With that in mind employees across Wales could be contemplating handing in their notice of resignation this January 21. And CJCH Solicitors’ employment law expert Nigel Daniel revealed that the firm does traditionally experience an upturn in employment queries throughout January.

But where do employees stand legally if they make a snap decision to leave their job? Where do employers stand in this situation? And what happens next?

Here, Mr Daniel answers all the questions that discontented employees, and their employers, may have this Blue Monday.

Do you see an upturn in queries to the Employment Team on Blue Monday/ or during January?

It is usually the position as far as this firm is concerned, that we see an upturn in relation to Employment Law in the month of January, however this year there has actually been a decline at CJCH.

What sort of issues is the employment team contacted about? 

At this time of year, there are the inevitable enquiries about incidents arising out of Christmas Parties.  From the employer’s perspective, we have instructions regarding the implementation of disciplinary procedures, enquiries from new start-ups and unfortunately in this present uncertain economic climate, queries regarding redundancies and procedures that have to be followed.

Regarding the issue of Blue Monday and employees it may very well be the position, that if and when an employee decides to leave, we may have enquiries both from the employer and the employee regarding the possible impact of post-employment agreements.

What is the most common problem people contact your team regarding?

The Employment Team in CJCH, undertakes a broad spectrum of work involving both contentious and non-contentious Employment Law matters.  We are frequently instructed to prepare company handbooks, advice on disciplinary and grievance procedures and all aspects of family friendly policies.

On the contentious side of matters, the introduction of Section 111(a) Protected Conversations, means that we are frequently asked to try and negotiate exit packages for employees by both the employee and the employer.  In addition, of course, we are always instructed to act on matters involving unfair dismissals, wrongful dismissal and areas of discrimination.

The increasing awareness of the Me Too campaign has led to an increase of enquiries from female employees who have suffered the indignity of unwarranted attention of a sexual nature. 

What are the options for someone who wanted to leave a job with immediate effect and not give notice?

Most responsible employers will have in place contracts of employments for their employees which will give a clear indication of what notice the employee is entitled to, whether or not it is contractual or statutory.  In addition, most contracts of employment will give a clear indication of what period of notice an employee is required to give the employer.

It is the position, that even when there is no formal contract of employment, the employer is under a statutory obligation to provide an employee with a written statement of the main terms and conditions of his/her employment within two calendar months of starting work.  This should also include the notice provisions.

If therefore, there is no contract of employment or for that matter a Section 1 Statement of Terms and Conditions, the Employment Rights Act lays down the minimum period of notice required from an employee, that is one week.

It may very well be the position, that an employee who wishes to leave a job with immediate effect can agree with his employer to waive the notice period.

If however the employee leaves his job without giving notice, and without the agreement of the employer, a number of situations may arise.

  • It may very well be the position, that post-termination restrictive covenants are in place and the employer may very well seek injunctive relief to prevent the employee starting employment with a new employer if, there is a risk that the post-termination restrictive covenants would be breached.
  • It may also be the position that the employer is concerned about the breach and can refuse to accept the employee’s repudiation and request that he/she sits out the notice period at home.
  • It is also possible for an employer to seek damages against an employee who leaves in breach of notice provisions if it can be shown a financial loss has arisen.  However, circumstances such as these are very rare, as quantifying loss is difficult.

Can someone leave during a probationary period and what would they need to consider?

Leaving during a probationary period, has very similar consequences as above.

The main difference of course, is that an employee who wishes to leave during a probationary period is usually in the position of finding out, that he is not suited or does not like the post he has taken.

There are very rarely any circumstances, where an employer would seek to take action in such circumstances, other than possibly where the employer has paid for the employee to attend training courses prior to commencement of his employment and/or during the probationary period.

In those circumstances, there may be a recoupment provision.  In addition, notwithstanding the fact that an employee is in a probationary period, he may have gained confidential information which again may be subject to post-termination restrictive covenants.

What if a staff member is on Maternity Leave? What would they need to do to change jobs?

If a member of staff is on Maternity Leave, and wishes to change jobs, then the Maternity and Parental Leave Regulations provide that the female employee is bound by the contractual obligation to give notice to terminate her employment.

So a woman on Maternity Leave who decides not to return to work must advise her employer before the end of her leave period, either by a notice period which is contained in a Contract of Employment, or by the Statutory Minimum of one week under Section 86 of the ERA.

What industries do you generally get the most queries of this nature from? 

Most enquiries at this time of the year are generated from the care industry, retail, health care and security industries.

What is your top tip to anyone who might be spurred on to change jobs from Blue Monday?

Any Employee who is minded to change jobs under the Blue Monday syndrome, should consider a number of issues.

Firstly, it may very well be the position that they have more than two years continuity of service.  To leave therefore, would mean starting again and losing all employment rights that have been gained through having two years continuity of service.

In addition, any employee minded to leave and change jobs must also be acutely aware of any contractual provisions relating to the dissemination of confidential information, and of course post-termination restrictive covenants.

If the situation has arisen where the employee for some reason has become dissatisfied with his/her role, then possibly speaking to the HR Department or a line manager to discuss areas of dissatisfaction may resolve a problem.

CJCH Solicitors’ employment team is highly experienced and skilled in all aspects of employment law and the provision of HR legal services.

It supports a wide range of employers from SMEs to household name companies, universities and public sector organisations.