Tayside based solicitors and estate agents Miller Hendry today (12 March) celebrated raising over £10,000 for nine of the UK’s best loved charities through its Will Aid campaign activity in November 2019, ranking it the second highest fundraising firm in Scotland.

Representing the nine charities, including SCIAF (Scotland), ActionAid, Age UK, Christian Aid, NSPCC, Save the Children, Sightsavers, Tro̓caire (Northern Ireland) and the British Red Cross, Stephen Gillies, Community Legacy Manager at the British Red Cross, was present at the company’s office in Perth to present the firm with a certificate for the £10,885 raised for charity.
Miller Hendry is the second highest fundraiser in Scotland and the twelfth highest donating firm in the UK for Will Aid, committing itself every year to take part in November’s month-long fundraising drive. The national campaign asks solicitors to waive their usual fees for creating professional Wills, with clients then donating to Will Aid instead.

Having supported Will Aid for several years, the firm has now raised £103,404 to date from 17 Will Aid campaigns, making it the UK’s third highest donating firm in the history of the Will Aid campaign which has been promoted annually for the last 30 years.

Stephen Gillies, Community Legacy Manager at the British Red Cross said: “We’d like to thank Miller Hendry and all the people who made their Will during Will Aid month last November. Contributions like this help charities such as the British Red Cross, who then use those donations to reach people in crisis, both here in the UK and all around the world.”

John Thom, Chairman of Miller Hendry, said: “Miller Hendry has been committed to raising money for these fantastic charities for many years now and we are absolutely delighted to have been able to raise so much during the last campaign in November 2019. We are particularly proud to be the UK’s third highest donating firm in the history of Will Aid!

“Will Aid is the ideal opportunity to make a Will and the campaign has made an amazing contribution to the work of the nine participating charities.
“People are often unaware of the problems they are leaving behind for those closest to them if they pass away without having a Will. Having a Will prepared gives people peace of mind that their families are being taken care of. It is the only way to put you in control of your estate after death. To be able to donate money to these nine worthy charities through Will Aid is the icing on the cake.”

Peter de Vena Franks, Campaign Director at Will Aid, said: “Thanks to the commitment of local solicitors that took part on this year’s Will Aid, many people both in the UK and abroad will have received life-changing support and local people who used the scheme have the peace of mind that having a professionally drawn up Will brings. I would like to offer my heartfelt thanks to Miller Hendry for their incredible efforts this year.”

Tayside based solicitors and estate agents firm Miller Hendry has started the New Year with the promotion of three key staff members.

Mhairi Cage, based in the Perth office has been promoted to Senior Associate, Julie Darroch, based in the Crieff office has been promoted to Senior Associate and Lindsay Kirkwood, based in the Dundee office has been promoted to Senior Solicitor.

A graduate in law from the University of Glasgow before completing a Diploma in Legal Practice at the University of Dundee, Mhairi joined the firm as a trainee in 2010 working within the private client department. Her responsibilities include dealing with Wills, Powers of Attorney, Executries, Guardianships, Inheritance Tax Planning, Trusts and Charities.

Julie, who is the third generation of her family to work for the firm, practised in Edinburgh before starting at Miller Hendry in 2014. At the firm she specialises in all aspects of residential property work including conveyancing, Title Disputes and sale and purchase of property. As Senior Associate Julie will be responsible for helping the growth of the business in Crieff going forward.
A graduate in law from Glasgow University, Lindsay started as a trainee with the company in 2015 within the private client department, qualifying as a solicitor in 2017. Since then has achieved a coveted international industry qualification, the STEP Diploma in Trust and Estates (Scotland), which means she is now a recognised expert in her field of family inheritance and succession planning.

John Thom, Chairman of Miller Hendry, commented:

“We’re delighted to start the year with a series of promotions for our extremely hard-working team, which span all three of our offices in Tayside. Mhairi, Julie and Lindsay are exceptional staff members, who thoroughly deserve their promotions. They will be an integral part of the firm as we move the business forward and realise our ambitious plans for growth in Tayside.”

Alan Matthew, consultant in the Commercial Department at Tayside based solicitors Miller Hendry, provides advice on what companies should be considering as the clock ticks down to the annual Christmas party and how employers can avoid the event becoming the wrong sort of cracker

“Any company-organised office party, whether in or out of working hours and on or off site, is an extension of the workplace which can test a business across the board on its policies and attitudes. It’s a real stress-test for the culture of the business and its employment policies. Each year we see another significant case reaching the courts arising from an incident at a work party.  Often the focus is on creating a morale-boosting and team-building event, and that’s important, but staff need to know the boundaries and what is acceptable behaviour if companies are to safeguard against a difficult morning after.

“One big headache for employers is the risk of being held vicariously liable for the misconduct of their employees at such events. Aggression and sexual harassment are the most common forms of misconduct at such events, something no organisation wants to see happening at what is supposed to be a festive celebration. This type of misconduct can lead to substantial claims for compensation, with the associated damage to a company’s reputation.

“To protect staff, it’s important that companies take the necessary steps to assess and guard against potential risks, including setting out expected standards of behaviour, limiting the amount of alcohol and having a clear boundary for when the event will close.

“From the get-go, employers should set out the company’s attitudes to alcohol consumption at the party. It’s particularly important to set clear boundaries as there is generally a zero-tolerance policy towards alcohol in the workplace and the party is an extension of the workplace. Additionally, to be inclusive, employers should ensure non-alcoholic drinks are available if alcohol is being served. This is particularly important for those who may not want to drink on the night, if they are driving or for cultural and religious reasons.

“Its important employers manage overall alcohol consumption, so employees don’t lose their usual workplace inhibitions.  Remind everyone that actions or comments that would be unacceptable behaviour in the workplace still hold in the relaxed atmosphere of the party.  Be clear about when the event will close and make everyone aware at the appropriate time that the party is over.

“Employers ought to be alert for health and safety risks the morning after, if it’s a working day, particularly where machinery or driving is involved, in case anyone is still under the influence of alcohol. If anything happens, act promptly to investigate and make sure grievance or disciplinary policies are followed.

“The annual work Christmas party is a fantastic opportunity for colleagues to let off some steam and get to know each other in a more informal environment.  By following some simple, practical guidelines, employers can be sure to avoid a cracker of a hangover the morning after.”

Lindsay Kirkwood and Samera Ali, solicitors at Tayside based solicitors and estate agents Miller Hendry, have both achieved a coveted international industry qualification, the STEP Diploma in Trusts and Estates (Scotland), and are now fully-fledged members of the organisation.

STEP is the leading worldwide professional body for practitioners in the fields of trusts, estates and related issues. It runs several qualifications for those who advise on family inheritance and succession planning, including Certificates, Advanced Certificates and Diplomas. Students need to gain a specific number of credits via examination, essays or prior experience in order to become a Full Member or TEP.

The qualification means that both Lindsay, who works in Miller Hendry’s Dundee office, and Samera, who works in Miller Hendry’s Perth office, are now internationally recognised experts in their field of family inheritance and succession planning.

Lindsay previously won a STEP Worldwide Excellence Award for achieving the highest mark in her Trust and Executry Accounting paper on her journey to achieving her Diploma. She was one of only 46 students internationally to receive such an award.

Ernie Boath, Head of Private Client department at Miller Hendry, said: “We’re delighted to have two team members who are now fully-fledged members of STEP and therefore internationally recognised experts in their field. Lindsay and Samera have both done incredibly well and as a firm we are extremely proud of their achievements.”

Madeleine Jennes, STEP’s Senior Manager, Professional Development, said: “The STEP Diploma is a rigorous and challenging qualification, which takes years of study. We extend our warmest congratulations to Samera and Lindsay on completing the diploma and achieving Full Membership of STEP conferring the designation TEP. The TEP designation gives assurance to clients that their advisor is a highly qualified and experienced trust and estates practitioner, upholds high professional standards and is best placed to advise them and their families across the generations.”

By Alistair Duncan, Partner and Head of the Commercial Department at Miller Hendry

Two recent tribunal claims have highlighted the challenge for employers in safely navigating personal expression by employees in the workplace.

A hospital nurse who discussed her Christian views with patients, offering a bible to one and advising another that his survival prospects would be improved if he prayed to God, was fairly dismissed for improper proselytising, a court has ruled.  But another, where a quality control manager was asked to keep her sexual orientation under wraps, has seen a compensation award of £8,000 for direct discrimination.

Nurse Sarah Kuteh was responsible for assessing patients about to undergo surgery, part of which involved asking them about their religion, but patients complained that she initiated unwanted religious discussion. When the issue was raised with Mrs Kuteh, she assured management at the Darent Valley Hospital that she would not discuss religion again unless she was directly asked by a patient.

When further incidents followed, she was dismissed on the grounds that she had breached the Nursing and Midwifery Council’s code of conduct.  She later issued an unfair dismissal claim, alleging a breach of a European Convention right to freedom of thought, conscience and religion.

When the case of Kuteh v Dartford and Gravesham NHS Trust [2019] EWCA Civ 818 reached the Court of Appeal, the court recognised the importance of the right to freedom of religion, but said improper proselytising was not covered under Article 9 of the European Convention on Human Rights, which defends the qualified right to practice religion.  As a result, the court ruled it was not unfair for the NHS Trust to have dismissed the nurse for proselytising to patients after being asked not to do so.

But in Mrs A McMahon v Redwood TTM Ltd and Mr Darren Pilling: 2405368/2018 the company found itself in hot water for stopping an employee speaking out.

When Ashleigh McMahon joined textile firm Redwood TTM, she disclosed that she was gay to her immediate boss during the first week of her new job, but he told her to avoid mentioning this to anyone else, saying the owner of the company was ‘old school’ and wouldn’t like it.  After being made redundant some months later, she made a number of tribunal claims against her former employer, including unfair dismissal and making a protected disclosure, as well as direct and indirect discrimination.  Although the other claims were rejected, the tribunal agreed that the request by her manager amounted to direct discrimination on the grounds of sexual orientation, as the same request would not have been made to one of the company’s heterosexual employees.

These two cases highlight the need for businesses to keep their recruitment and working practices under constant review, as there is growing pressure to keep pace with both the law and changing attitudes across society.  There is no special escape clause for those who are ‘old school’ and everyone must make sure they refresh their mind-set.  Employees cannot be treated differently on the basis of their sexual orientation or any other protected characteristic.

The Equality Act 2010 prevents direct and indirect discrimination based on protected characteristics, which include gender, age, disability, race, sexual orientation, personal relationship status, and religion or belief.  The protection of the Act extends to consumers, the workplace, education, public services, private clubs or associations and when buying or renting property.

Questions can be asked about health or disability only in certain circumstances, such as whether someone may need help to take part in an interview, and disability covers both mental or physical impairments and an employer should make ‘reasonable’ adjustments to accommodate disabled applicants and employees.

In addition, the Act makes it unlawful to discriminate, or treat employees unfavourably because of their pregnancy, or because they have given birth recently, are breastfeeding or on maternity leave.

Employees should not be required to share personal information if they are not comfortable doing so, but equally they should not be precluded from discussing aspects of their private life if others who do not share their protected characteristic can freely discuss those aspects.

Employers should have up to date equal opportunities policies detailing their approach to equal opportunities and setting out what is and what is not acceptable.

Lindsay Kirkwood, a solicitor at Tayside based solicitors and estate agents Miller Hendry, has won a coveted award in the Society of Trust and Estate Practitioners (STEP) Worldwide Excellence Awards, which recognise the highest achievements in STEP qualifications globally.

Currently working towards her STEP Diploma in Trusts and Estates (Scotland), Lindsay received the award for achieving the highest mark in her Trust and Executry Accounting paper. She is one of only 46 students internationally to receive such an award.

STEP run several qualifications for those who advise on family inheritance and succession planning, including Certificates, Advanced Certificates and Diplomas. Students need to gain a specific number of credits via examination, essays or prior experience in order to become an Affiliate Member, an Associate Member or a ‘TEP’, the designation granted to a full member of STEP. Lindsay has one more exam left to take in July and will then be eligible to receive her Diploma and become a ‘TEP’.

Lindsay Kirkwood said: “I’m absolutely delighted to have achieved the STEP Advanced Certificate in Trust and Executry Accounting with the highest mark in my exam paper. I’m excited to be a step closer to obtaining my goal of achieving the Diploma and becoming a fully-fledged member of STEP.”

Ernie Boath, Head of Private Client department at Miller Hendry, said: “We are tremendously proud of Lindsay. As one of only 46 students internationally to receive this accolade, it is a fantastic achievement. We wish her all the very best as she works towards achieving her Diploma and becoming an internationally recognised expert in her field.”

Madeleine Jenness, STEP’s Senior Manager, Professional Development, said: “Lindsay has our warmest congratulations. The Advanced Certificate in Trust and Executry Accounting is a challenging course and to obtain the highest distinction score worldwide, as Lindsay did, is a terrific achievement. We look forward to seeing such a promising student become a Full Member of STEP.”

By Alistair Duncan, Partner and Head of the Commercial Department at Miller Hendry

For the shareholding directors of many privately-owned companies, the endgame is focused on selling up before moving on to new ventures or sometimes retirement. But many owners under-estimate the time involved in making a business market-ready, or do not seek advice on the different options before they start, nor the route-map to follow to secure a successful sale.

Ideally, an advisory team should be put together, involving a lawyer and an accountant specialising in company transactions, to guide the company on the preparation for sale, before any moves are made to seek out buyers.  Calling in advisors after a deal has been struck may mean financial or legal pitfalls that can cause a deal to fail in later stages and the role of the advisory team in this preparatory stage is as important as any work they will undertake in finalising the deal.  Taking your time to get it right and make the business market-ready means that timescales of 12 to 24 months for preparation are not uncommon.

In putting together a detailed exit plan for a limited company, the first question you are likely to be asked is whether you are looking for a share sale or an asset sale, also known as a business sale.   The answer may be influenced by personal, financial or legal reasons which can be explored with the specialists, but the final decision will determine the process to be followed and the resulting tax implications for both buyer and seller.

It’s worth mentioning before exploring this further, that choosing between these two options will apply only for limited companies, where the company is an entity in its own right.

SHARE SALE

The shareholders sell their shares in the company that owns the trade and assets of the business.  

A share sale is effectively the clean-break option for the shareholders.  The buyer is purchasing the whole company, its assets, liabilities and the business as a going concern.   There is no need for new contractual arrangements with employees, suppliers, customers, landlords or others, as the corporate entity that is the company will continue in its present form; it is simply that the shareholding has been transferred.

ASSET SALE

The company sells some or all of the assets which comprise the business.

Here the seller is the company itself, rather than the individual shareholders. Only those assets and liabilities identified and agreed to be transferred are involved in the sale.  This can cover both tangible assets, such as property, stock or machinery, and intangible assets, such as intellectual property and goodwill.   An asset sale may take place because a seller wants to retain parts of the business that will continue to operate, or be sold elsewhere, or because the buyer wants to cherry-pick and avoid certain company liabilities.  As the business is being transferred to a different corporate entity, third-party contracts with customers and suppliers need to be redrawn; commercially rented property requires negotiation with the landlord to agree an assignation of the lease and there would have to be employee consultation.  A Transfer of Undertakings (Protection of Employment) Regulations situation is likely to arise, commonly known as TUPE, where employment rights are protected and transferred to the new owner of the business assets.

A key factor in the decision making between these two routes is the tax position.  This is complex and specific to each situation, but generally individual shareholders will be better off in a share sale, with a single tax charge on any capital gains arising, and which is likely to be reduced to 10% if entrepreneurs’ relief applies.  In an asset sale, there is a potential double tax charge, firstly on the company, with corporation tax on the profit made on the sale of assets, and then on the shareholders when they withdraw the sale proceeds from the company.

Whichever of these two routes is finally decided upon, the management team need to be sure that contracts and policies are all in order, and that any disputes or other issues have been resolved.  Once the company is ready to go on the market, a non-disclosure agreement (NDA) for potential buyers should be in place and confidential information must be withheld from any interested parties until the NDA has been signed.

Once a deal has been agreed, buyers should be credit checked and their source of funds validated.  If those pass the test, then set out the terms at an early stage of negotiation.  The sale price is important, but it’s not the only thing that matters.  Getting a clear document setting out the heads of agreement can influence the way the transaction progresses and means everyone knows what is expected of them.

This is likely to include a timetable covering aspects such as when contracts will be sent, how long the buyer has to complete due diligence, through to when exchange of contracts and completion will take place.  It should clearly set out what is being sold and what may be specifically excluded.   And while a non-refundable deposit is usual on exchange of contracts, it is worth considering a deposit on the signing of the heads of terms, as this can protect against a buyer withdrawing without good reason or failing to meet the timetable.

At each stage, the most important thing is that all members of your advisory team are working with each other in a seamless way throughout the process, as well as directly with you.  Where the ground shifts, as it inevitably will, it’s important they remain focused on the vision you have for the company sale, and work with you to achieve the best possible outcome in changing situations.

By Alistair Duncan, Partner and Head of the Commercial Department at Miller Hendry

June is Pride month, when the LGBTQ+ community celebrates with a series of events. It’s a joyful and fun time, but it’s also a protest – there are still battles to be fought, especially when it comes to discrimination in the workplace. Nobody should be made to feel uncomfortable because of their sexual orientation whether they’re in a single-sex relationship, are trans, or gender fluid. Yet even in the 21st century there are some workplaces where being gay can lead to discrimination, physical and verbal abuse, and even dismissal. To mark Pride month, we look at the legal rights gay and gender-fluid workers have under the current legislation.

The Equality Act 2010

Since 2010 it has been against the law to discriminate against a job candidate, employee or trainee based on their sexual orientation. So, an employer refusing to promote someone based purely on the fact that they’re gay or trans is illegal, and the employer can (and should) be taken to court.

Discrimination is defined into four different types.

  • Direct discrimination: when someone is treated ‘less favourably’ because of their sexual orientation, whether that’s their actual orientation, their perceived orientation, or the sexual orientation of someone they associate with (known as direct discrimination by association).
  • Indirect discrimination: This usually applies to company policy that is in principle designed to apply equally to everyone but may, in fact, discriminate against gay or trans people, such as maternity leave for people in same-sex couples, or bathroom policies.
  • Harassment: This is defined as unwanted conduct that is deliberately designed to intimidate, humiliate or create a hostile environment for gay or trans people.
  • Victimisation: If an employee suffers what is legally known as a ‘detriment’ (disadvantage, damage, harm or loss) as a result of the actions of their employer then they can pursue a case for victimisation. This is usually the case when a gay or lesbian worker has been passed over for promotion based solely on their sexual orientation.

The employer’s duties

To ensure that LGBTQ+ workers are treated fairly and equally, employers must have rigid workplace policies that avoid any kind of discrimination. These should apply not just to the working environment, but to recruitment, training, promotion, pay levels, and discipline/grievance processes. In fact, from the moment an employee walks through the door to the moment they leave at the end of the day, it is up to the employer to ensure the workplace is one where discrimination and harassment are eliminated completely, regardless of the sexual orientation of an employee, contractor, or visitor.

What constitutes harassment?

Anything from an inappropriate ‘joke’ to verbal or even physical abuse based purely on the sexual orientation of the victim is classed as harassment. That also includes written content, so a meme or social media joke that targets gay people and shared via an internal email system, for example, would constitute harassment.

It’s important that employers take complaints of harassment seriously. Passing it off as ‘just a bit of workplace banter’ is wholly unacceptable and no excuse for abusive behaviour of any kind. If a complaint is put in, then the employer has a legal duty to investigate it and respond.

Is it really that bad?

For over 40 years, the LGBTQ+ community have been fighting against workplace discrimination based on sexual orientation. It’s down to the employer and other employees to ensure that a hostile, toxic environment is eliminated, and that everyone is treated fairly and equally. We’ve come a long way in the last few decades, but there is still room for improvement in every workplace. The law makes it easier and less intimidating for LGBTQ+ workers to challenge harassment, but it’s up to everyone to make sure that everyone is made to feel worthwhile, welcomed, and valued in the workplace, regardless of their sexual orientation.

If you feel you’ve been discriminated against based on your gender or sexuality, talk to a solicitor specialising in employment law.

Tayside based solicitors and estate agents Miller Hendry today (23 May) celebrated raising over £10,000 for nine of the UK’s best loved charities through its Will Aid campaign activity in November 2018, ranking it one of the top fundraising firms in Scotland.

Representing the nine charities, including SCIAF (Scotland), ActionAid, Age UK, Christian Aid, NSPCC, Save the Children, Sightsavers, Tro̓caire (Northern Ireland) and the British Red Cross, Stephen Gillies, Community Legacy Manager at the British Red Cross, was present at the company’s training day at the King James VI Business Centre in Perth to present the firm with a certificate for the £10,390 raised for charity.

Miller Hendry is the third highest fundraiser in Scotland and the fifth highest donating firm in the UK for Will Aid, committing itself every year to take part in November’s month-long fundraising drive. The national campaign asks solicitors to waive their usual fees for creating professional Wills, with clients then donating to Will Aid instead.

Having supported Will Aid for a number of years, the firm has now raised £92,174 to date, making it the UK’s third highest donating firm in the history of the Will Aid campaign which has been promoted annually for the last 30 years.

Stephen Gillies of the British Red Cross said: “We were so very grateful to Miller Hendry Solicitors and the Will Aid scheme for their generous contribution last year and in previous years as well. The Red Cross uses donations to reach people in crisis, both here in the UK and all around the world. This year, with the help of legal firms like Miller Hendry, we’ll be able to help even more people at home and across the world.”

Caroline Fraser, Partner at Miller Hendry said: “Miller Hendry has been committed to raising money for these fantastic charities for many years now and we are absolutely delighted to have been able to raise so much during the last campaign in November 2018. Will Aid is the ideal opportunity to make a Will and the campaign has made an amazing contribution to the work of the nine participating charities. Thanks to the commitment of local solicitors that take part, many people both in the UK and abroad will receive life changing support. Local people who use the scheme also have peace of mind thanks to having a professionally drawn up Will.

“People are often unaware of the problems they are leaving behind for those closest to them if they pass away without having a Will. Having a Will prepared gives people peace of mind that their families are being taken care of. It is the only way to put you in control of your estate after death. To be able to donate money to these nine worthy charities through Will Aid is the icing on the cake. The team at Miller Hendry will certainly be fundraising once again in 2019.”

Peter de Vena Franks, Campaign Director at Will Aid, said: “Will Aid has made an amazing contribution to the work of these nine participating charities in the last 30 years. Thanks to the commitment of local solicitors that took part in this year’s Will Aid, many people both in the UK and abroad will receive life-changing support and local people who used the scheme have the peace of mind that having a professionally drawn up will brings. I would like to offer my heartfelt thanks to Miller Hendry for their incredible efforts this year.”

For further advice or information on creating a Will or any other legal issues, please visit www.millerhendry.co.uk.

In Scotland, any individual who is assessed as requiring care and is over the age of 65 is entitled to the “free personal care allowance”. This financial allowance is there to assist people in paying for care where it relates to day to day tasks e.g. washing, eating etc.

Leann Brown, an Associate Solicitor in our Dundee office comments, “From 1st April 2019, the rate of the free personal care allowance rose to £177 per week. For those living in care homes and who have been assessed as also requiring nursing care services, the rate payable rose to £80 per week. The capital thresholds also rose to £28,000 and £17,500. The lower of these two figures represents the point at which an individual will stop being deemed to be “self-funding” for care fee purposes. Once this point is reached, the Local Authority are required to fully fund care fees for those in need.”

Prior to 1st April 2019, those under 65 who fell into the above category would not be entitled to the free personal care allowance, meaning that those who had been diagnosed with illnesses such as Motor Neurone disease would not have been entitled to anything. Such individuals had to pay for their care themselves.”

Free Personal Care
Leann adds, “1st April 2019 saw the introduction of “Frank’s Law” which will allow those under the age of 65, who are assessed as requiring care, to claim this allowance. This change was the result of a campaign by the widow of the late Dundee United footballer, Frank Kopel. He was sadly diagnosed with vascular dementia aged 59 but was unable to claim this allowance to assist with his care due to his age. This represents a big change in funding policy and will help so many people.”