Losing the ability to make our own financial and welfare decisions can be an uncomfortable thought; however, sadly, for some people this is the reality of life. More and more clients are becoming aware of the importance of granting a Power of Attorney.

What is a Power of Attorney?

A Power of Attorney is a formal document authorising someone you trust to act on your behalf. It can only be granted when you have full mental capacity. Therefore, it is crucial that the document be prepared as early as possible. Many people believe that Powers of Attorney are only required for the elderly. While the urgency to grant a Power of Attorney may be due to the onset of a degenerative illness such as dementia, they are also extremely important where an individual becomes mentally incapable due to an accident or illness.

In Scots law, there are two types of Powers of Attorney
Power of Attorney

Continuing – This covers financial and business affairs and can be brought into operation at any time, i.e. before you lose capacity with your consent.
Welfare – This covers personal affairs and can only be brought into operation if capacity is lost.

Powers of Attorney can be designed to cater to present and future requirements. Your situation can quickly change and it is important to have powers in place that cover all of your needs.

Donnie MacLeod, a Partner in our Crieff office commented: “We work with many clients with different needs and requirements and we can almost always incorporate these into a Power of Attorney.

It is important that our clients consider granting a Power of Attorney at an early stage. If a client has lost capacity (which can be confirmed by a doctor), and ongoing financial and welfare decisions need to be made for them, a Guardian will need to be appointed through the Court. This is a time consuming and costly process, which can be easily avoided at the outset by putting a Power of Attorney in place.”

At Miller Hendry we are here to take the pressure off of these future decisions by working with you to design a tailor-made Power of Attorney that caters to all of your needs.

For further advice or information on this or other legal issues, visit www.millerhendry.co.uk

New legislation will force employers in Tayside to provide itemised payslips for all staff including part-time and zero-hour workers.

The new rules which will come into force in six months time will mean workers must be issued with written, printed, or electronic payslips detailing how payment was calculated.

The change has been introduced to help employees better understand their pay and ensure they are being paid correctly. It is also hoped that it will make it easier to identify if employers are meeting their obligations under the National Minimum Wage and National Living Wage and that holiday entitlements are correctly applied.

Alan Matthew, employment law expert at Miller Hendry, said: “Many employers are not meeting legal minimum requirements because they do not understand their employment law obligations when it comes to workers. It’s hoped that this new process will be one step towards improved awareness.

“The distinctions between an employee, a worker and a self-employed contractor may not be clear cut for some organisations, so it’s important to keep abreast of what’s going on in employment law and what legislative changes are coming up. That way you can keep ahead of the deadlines and make sure you’re facing up to issues that may otherwise pose difficulties later.”

The two amendments to the 1996 Employment Rights Act will come into force on April 6 2019. From that date, employees and workers, including those under casual or zero hours contracts, must receive correctly detailed written, printed or electronic payslips.
But while the change itself is straightforward, new payroll procedures and alternative software may be needed to satisfy the new requirements.
Alongside, a more complex question for many companies when it comes to implementing the new requirements will be whether someone is an employee, a worker or a self-employed contractor.

Many organisations do not recognise that even where someone is not an employee, they may still be categorised as a ‘worker’ and be entitled to certain rights such as the national living wage, paid holiday and sick leave. An employee may also be a ‘worker’, but with extra employment rights and responsibilities.
And the boundaries as to who is a worker and who is self-employed are increasingly difficult to pin down following high-profile cases involving Uber and other so-called gig economy companies, with individuals winning the right to be treated as a worker, rather than a self-employed contractor.

What needs to be included in the written statement of wages:

• the amount of gross wages or salary
• for any part that varies according to time worked, the total number of hours worked and the rate of pay, either as a single aggregate figure or separately for each type of work or rate of pay
• the amounts of any deductions and what they relate to
• the net amount of wages or salary payable
• if paid in parts, the amount and payment method for each part

For further advice on this or any other legal issues, visit  www.millerhendry.co.uk

In recent years, following the tragic death of a young Black Watch soldier, a case regarding disputed funeral wishes reached the headlines. In addition, we have seen a number of changes in the law covering burials and cremations in Scotland.

A soldier serving in the Black Watch passed away in 2011 and his mother and wife could not agree on the terms of his funeral. The soldier had expressed a wish to his mother that he would like to be buried near his grandfather. He subsequently expressed a wish to his wife to be buried beside her late brother. The soldier appointed his mother as his executor, giving her the responsibility of administering his estate with everything passing to his wife. The Will did not include funeral arrangements.

Subsequently, the relationship between the soldier’s mother and wife broke down. They could not agree on the funeral arrangements. The case eventually went before Sheriff Johnson of Forfar Sheriff Court. The Sheriff found that the soldier’s wife was entitled to make the arrangements for the funeral of her late husband. Sadly, it took 4 years for his remains to finally be laid to rest.

Funeral instructions

This is an unusual case in that the soldier had been slightly misled when drawing up an Army Will by his Sergeant who had stated that the executor and the beneficiary could not be the same person. If this misinformation had not been given to the soldier then he would have likely appointed his wife as both executor and beneficiary to his estate.

Perhaps offering some further clarity following this case, The Burial and Cremation (Scotland) 2016 Act (“the Act”) provides a modern legal framework for burial and cremation. The existing legislation was old, dating back over 100 years, and had become

increasingly out of date for modern life. The Act offers guidance and clarity in many areas, some of which are explained below.

Leann Brown, Associate Solicitor confirms, “One area in particular where the Act should offer some clarity is where there is such a dispute amongst family members over the arrangements of a deceased’s funeral. Disputes such as this do happen, especially if the deceased left no written instructions. The 2016 Act provides some useful directions in this area.

If the deceased leaves no guidance of their intentions, or it is impossible to fulfil their wishes, the 2016 Act provides that their “nearest relative” is entitled to make the funeral arrangements. The 2016 Act sets out who may be classified as a “nearest relative”. The deceased’s spouse or civil partner is at the top of the list.”

Leann added, “If our clients have any concerns regarding their wishes being followed, we would be happy to review their current arrangements.”

For further advice or information on this or other legal issues, visit www.millerhendry.co.uk

Miller Hendry is celebrating the opening of a new office in Crieff this week after making a short ‘flit’ to new premises across the road at 21 Comrie Street.

The move signals an exciting new chapter for the firm as it continues to expand and strengthen its commitment to the Perthshire town.

The Crieff office is headed by Donnie MacLeod, a partner and private client specialist, who has worked with Miller Hendry since 2003. Donnie advises on Wills, Powers of Attorney, Guardianships, Estate and Inheritance Tax Planning, Trusts, advice to elderly clients and the administration of Executries.

The eight-strong team also includes two Associates Solicitors, David Smart and Julie Darroch, plus Executry Paralegal Liz Dawson. David has extensive expertise in domestic conveyancing and handles general chamber work such as preparation of Wills and Powers of Attorney, while Julie specialises in all aspects of residential property work. Liz Dawson deals with the administration of Executries.

The team is supported by three Legal Secretaries – Carol Brock, Shona Douglas and Gill Betty – with Jane Fraser on reception.

John Thom, Chairman of Miller Hendry, said:
“This important move is all about ensuring Miller Hendry continues to provide the best quality legal work for both existing and new clients.

“Our clients, many of whom have been with Miller Hendry for generations, know that we work hard to ensure everything we do is of the very highest standard. The new office at 21 Comrie Street is a reflection of this and we look forward to welcoming our clients to the new premises and, of course, to our other offices in Perth and Dundee.

“Crieff is an ambitious town with huge potential, and we are excited to be a part of its future.”

Miller Hendry is a long-established legal and estate agency practice which has served individuals and businesses in the Tayside and Strathearn area for generations.
The firm – which employs 85 members of staff in three offices across Dundee, Perth and Crieff – prides itself on providing the high level of service you would expect from one of the largest estate agents and legal practices in the area combined with the personal touch its clients expect.

Well-placed to service all your legal and property needs under one roof, staff include experienced and highly professional solicitors, paralegals and support staff.

For more information contact: Miller Hendry, 21 Comrie Street, Crieff, PH7 4AX. Tel. 01764 655151. Fax. 01764 652903

A recent and comprehensive Government study suggests that improvements in staff well being result in better workplace performances including profitability, labour productivity and quality of services or outputs.

Factors that have been shown to have a strong and positive link with workplace performance include:-

• Satisfaction with training.
• Skills and development opportunities.
• A degree of autonomy.
• Scope for using initiative and influencing decisions.

Wellbeing

Research has shown that employers who are able to focus effort on a number of the following areas should be able to increase wellbeing and, as a result, workplace performance:-

• Involvement in organisational decision making; good communication and consultation; ensuring that staff have a “voice” in the workplace.
• Variety in work undertaken. This could be addressed through job design.
• A sense that all roles within an organisation have significance and value.
• Being clear about what is expected of staff members.
• Supportive supervision.
• Positive interpersonal contact with other people including managers, co-workers, customers or the general public (where the job requires it).
• Opportunities to use and develop skills.
• A sense of physical security, confidence in equipment and the pleasantness of the work environment.
• A sense of job security and clear career prospects.
• A perception of fairness in the workplace.
• Higher pay – this relates not only to the absolute level of pay but also how it compares with the pay of other workers.

The Government Equalities Offices has published new guidance on dress codes and sex discrimination.
Employers are reminded that, whilst dress policies for men and women do not have to be identical, standards imposed should be equivalent.
A warning is also given that any employer requiring employees to wear gender-specific items, such as make-up or high heels, is likely to be unlawful.

It is unlikely that anyone will have escaped the news that the General Data Protection Regulation, or GDPR, has now come into force!

GDPR has overhauled how businesses process and handle data.

Whilst GDPR is a large topic that we could write about at great length, we have put together a summary of key practical points that should always be considered in this new era:
GDPR – Key Practical Points

1. Personal data should be processed in such a way that someone looking at it should not be able to identify to whom it relates. Additional information, such as a key or code, should be kept both separately and securely so as to decode the personal data. This process is known as “pseudonymisation”.

2. Use passwords wherever possible and encourage employees to use more complex passwords that should never be shared and should be changed regularly.

3. Consider whether data can be anonymised. Think about whether it is really necessary to identify specific employees on your data.

4. Think about the devices that your employees use and their security access to these. Consider whether it is appropriate that employees are permitted to use their own smart phones and laptops for work purposes and whether company equipment should now be used instead.

5. Data should be encrypted wherever possible, particularly if it is being transferred or if your organisation allows remote working.

6. Make sure that measures are put in place to ensure that you are compliant with GDPR principles.

7. Only process personal data necessary for specific purposes.

8. Records should be kept to prove your compliance with GDPR.

A dedicated team of walkers from Miller Hendry recently completed a special charity trek in memory of two former colleagues who passed away.

The 13-strong group of partners and staff walked 14 miles from Cargill near Blairgowrie to the legal and estate agency’s Perth office on Friday, August 24, 2018.

The trek was organised to raise money for Breast Cancer Research and Aplastic Anaemia Trust in memory of two much-loved former colleagues, Brenda Pilling and Ruth Kerr. Brenda passed away in 2016 and Ruth earlier this year in February.
The challenge was a significant one for many of the walkers as the majority were not used to walking such long distances. John Thom, Miller Hendry’s Chairman, said:

“This charity trek was a very special way to remember our colleagues and raise money for charities that were close to Ruth, Brenda and their families’ hearts.
The walk was a challenge for many of the team, but they kept each other going on those last few miles.

The participants had an original fundraising target of £500 which has been more than sextupled with a whopping final total of £3,325! Sponsorship and tins at reception raised £1,648 and a further £1,677 was donated by the firm to reach this fantastic total.”

For further advice or information on this or other legal issues, visit www.millerhendry.co.uk

A Tayside employment law expert who last year hailed the decision to abolish tribunal fees as “one of the most important in the modern era” has been proved right as tribunal claims soar.

Alan Matthew, a partner from Miller Hendry, which has branches in Dundee, Perth and Crieff, welcomed the Supreme Court ruling in 2017. The ruling led to the UK Government refunding claimants after acting unlawfully in 2013 by introducing hefty charges of up to £1,200 in a bid to reduce the number of malicious and weak cases.

The Ministry of Justice said it would take immediate steps to stop charging and refund payments. As a result, single employee tribunal claims increased by 90% from October to December 2017, according to published statistics from the Ministry of Justice. The backlog of single employee tribunal claims increased by 66% in the same period.

Employment Tribunal

This increase in claims comes as no surprise to Alan Matthew, who strongly supported the right of employees to access justice and publicly lobbied for a rethink on tribunal charges.

He said: “When fees were introduced they had the fairly immediate effect of creating a financial barrier to proceeding with a claim for those wishing to take their employer to tribunal. Today, we see how removing the financial barrier has enabled claimants to retain a fairer balance of power between employer and employee, and restored that principle of employment rights for all, including the lower paid.

“Employers have felt the impact of last year’s Supreme Court ruling as the volume of claims has increased and this will continue to be the case now and in the future, so businesses should continue to be aware of the changes.”

As Tayside continues to soak up the summer sunshine, many of us have to head into work rather than to the beach!

The question is, when does it get too hot to work? Are employers legally required to keep your workplace within a certain range, and can you knock off work early if it gets too hot?

The simple answer is no. There isn’t actually any legal requirement for employers to let you go home when it gets hot. The only guidance you’ll find on the standard Gov.UK page on workplace temperatures is that all indoor workplaces must be ‘reasonable’.

Alan Matthew, a solicitor from Miller Hendry, which has offices in Dundee, Perth and Crieff, explained: “There is no law stating what the minimum or maximum working temperatures are, so it’s really down to the discretion of the employer. The guidance numbers range from a minimum of 16°C, or 13°C if employees are engaged in physical work. But they’re exactly that – just guidance numbers. They’re not enforceable by law.”

Too Hot To Work?

More detailed guidance comes from the Health and Safety Executive, who state that employers have a duty of care towards their employees and should ensure that:

• Temperatures are kept at a comfortable level and that extremes of temperature should be avoided. This is also known as ‘thermal comfort’.

• Clean, fresh air should be provided at all times.

The Six Factors

According to the HSE, there are six factors that can be directly related to thermal comfort. Air temperature alone is not an accurate or valid indicator of thermal comfort or, conversely, thermal stress. You need to take into account both environmental and personal factors:

Environmental factors:

• Air temperature.

• Radiant temperature – any heat radiating from warm objects.

• Air velocity – the speed at which air moves across an employee (for example, still or stagnant air that is artificially heated).

• Humidity – humidity levels can be said to be high when they are greater than 80%.

Personal factors:

• Clothing Insulation – particularly relevant if you are required to wear PPE during your work.

• Metabolic heat – the amount of heat given off during physical activity..

Alan Matthew continued: “It can be very difficult to legislate on any of these, particularly personal factors. PPE is often a legal requirement, and metabolic heat will depend on the individual.

“However, if environmental factors are giving cause for concern then you may be able to challenge your employer through either your union representative, or via legal representation. Remember, though, that there is no set limit in law so any legal challenges may be difficult. It’s probably better to think about mediation rather than litigation.”

Take a different approach

Rather than tackling the problem from a temperature point of view, it may be worth looking at it from a different angle – your employer’s duty of care to ensure a safe and comfortable working environment. If you feel that your wellbeing is being put at risk due to your working conditions, then you can challenge your employer and ask them to address the situation. This is particularly true if you have underlying health conditions such as asthma that may be exacerbated by extremes of heat, humidity, or poor quality air.

Alan Mathew added: “It is highly unlikely that you will get an instant response, but by pointing out to your employer that conditions are bad, you may be able to effect changes that will improve the situation later on. If they are unwilling to enter into any kind of dialogue, then you may need to ask a mediator to step in to get both sides talking again. Talk to a legal expert, professional mediator, or your union representative.