Brexit negotiators have reviewed the future of intellectual property rights, with an indication that EU-wide rights will be replaced with equivalent UK rights after the end of the transition period.

This “much needed” detail should give “reassurance” to holders of EU trade marks registered before the end of the Brexit transition, according to leading Tayside Commercial Law Expert Alan Matthew.

Currently the EU Trade Marks (EUTM) and Registered Community Designs (RCD) are valid in both the UK and the rest of the EU, which had raised questions over validity once the UK had left the EU. Now, the draft withdrawal agreement includes eight articles relating to intellectual property, detailing how such EU and Community registered designs are likely to be treated over coming years.

Alan Matthew, a solicitor from Miller Hendry, which has offices in Dundee, Perth and Crieff, explained:

“This detail was much-needed and helps in understanding the best path to adopt for registrations as we head through Brexit. As currently stated, it suggests that separate UK and EU trade mark and registered design applications do not need to be filed, which was the belt and braces approach taken by many, pending an announcement on how conversions would be treated post-Brexit.”.

“We do not know whether this conversion will happen automatically, or whether it will require action by the holder of the rights, or indeed whether a charge will be levied, but it does give some reassurance that holders of EU trade marks registered before the end of the transition period can expect an enforceable intellectual property right in the UK post-transition, and that the renewal date will be the same. Similarly, anyone holding a Community registered design right will become the holder of a UK registered design right.”

It is also expected that a new UK unregistered design right will be created, to provide the wider protection currently offered by the EU unregistered design right.

The draft agreement also sets out that protection will continue post-transition for international registrations of trademarks or designs which designate the EU via the Madrid or Hague centralised application systems for registration in multiple jurisdictions. The UK was already an independent signatory to the Madrid Protocol, and will independently accede to the Hague Agreement in June 2018. The UK will also continue to be a member of WIPO – the World Intellectual Property Organization – which administers these international processes.

Alan Matthew advised:

“Post Brexit, alongside any UK registrations, businesses seeking protection in Europe will be able to register an EUTM or RCD to cover all remaining EU Member States. However, filing through WIPO may become the simplest option, as it will cover the UK, the EU and countries such as the USA or Japan, with 68 countries signed up to the Hague Agreement and 116 to the Madrid Protocol.”

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.

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.”

You may recall a recent case which came before a Sheriff in Forfar. A soldier serving in the Black Watch passed away and his mother and wife could not agree on the terms of their loved one’s 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 executor of his estate, giving her the responsibility of administering his estate with his entire estate passing to his wife. The Will did not include funeral arrangements.

Subsequently the relationship between the soldier’s mother and wife completely broke down. They could not agree on the funeral arrangements. The case then went before Sheriff Johnson in the Forfar Court. The Sheriff found that the soldier’s wife was entitled to make the arrangements for the funeral of her late husband.

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 appointed his wife as both executor as well as the beneficiary to his estate.

In light of this case, along with the need to modernise the law in relation to burials and cremations, the Burial and Cremation (Scotland) Act 2016 received Royal Assent on 28th April 2016 with parts of it coming into force on 28th December 2016.

This Act also gives powers to burial authorities to manage burial grounds through to ways to support ongoing supply of burial space. It also allows the Scottish Ministers to introduce a licensing scheme for funeral directors. The Act also applies to private individuals in that it states who is responsible for implementing the individual’s wishes on their death and what happens if there is a dispute.

Some clients are very clear with regards to their funeral wishes and record these in their Will, whereas other clients prefer to give no thought to the matter, leaving it up to family members to make these decisions or assume the family will ‘know’ their wishes.

Part 3 of the 2016 Act clarifies who is responsible for making funeral arrangements if no one has been nominated and introduces an ‘arrangements on death declaration’.

An ‘arrangements on death declaration’ is a declaration in writing by a person confirming who will be responsible for making their funeral arrangements. The starting point would be the deceased person’s Will or any other writings they may have left. Anyone can be appointed to take charge of the funeral arrangements and it does not need to be a family member or the executor of your Will (if you have left a Will). The executor does however have responsibility for paying for the funeral as it is paid from the deceased’s estate and only the executor can access the funds.

If no ‘arrangements on death declaration’ has been left and no Will has been made, or the Will does not include a funeral clause, then the Act at Section 3 provides a ‘ranking’ of persons who are responsible for making the funeral arrangements. This is the nearest relative who, prior to the person’s death was their spouse or civil partner, cohabitant, child (including step child) the adult’s parent, brother or sister, grandparent, grandchild, uncle/aunt, cousin and so on.

Cohabitant means a person living with the deceased prior to their death as if they were married to each other and had been living so for a period of at least 6 months.

The Act also states that step-children are to be treated as children of the deceased and half brothers and sisters are to be treated the same as full brothers and sisters The Act does not apply to children under 16 years of age.

The Act tries to provide a clear framework should there be any dispute following from the case mentioned above. However it is not hard to imagine circumstances which will continue to cause controversy and anguish. For example, if a cohabitant of not so very long standing ranks above close family members in having the right to make funeral arrangements if the deceased has left no form of ‘arrangements on death declaration’ or left such a declaration in their Will.

We would suggest a Will is put in place which clearly states what a person’s intentions are on their death. This should name the person they wish to make their funerals arrangements, and express whether they wish their remains to be cremated or buried, being a helpful guide for the person they have nominated. The person making the Will should bear in mind that the person they appoint as executor will be paying for the funeral arrangements from the estate, and perhaps for ease of administration, the executor should be the person making the funeral arrangements. In any case, making a Will, taking time to think about your funeral, and naming the person you wish to make your funeral arrangement should provide direction and some comfort to those you leave behind as they know they are carrying out your last wishes.

Since April 2016, the Scottish Government has exercised its power under the Scotland Act 2012 to set its own rate of tax on the income of a Scottish taxpayer and from 6th April 2016, Scottish taxpayers “benefited” from the lowest income tax rate in the UK, of 10%. The inverted commas have been used because in real terms, no-one actually saw any difference! The UK income tax rates of 20, 40 and 45% set by Westminster had been reduced by an equivalent ten per cent for Scottish taxpayers so there was no real increase or decrease overall, certainly as regards 2016/17 tax year.

The following tax year was slightly different however, and our MPs, dipping their legislative toes ever deeper into the water then made the historic decision to set separate Scottish income tax rates and bands for the first time. Tax rates were frozen, as were income tax bands so whereas the rest of the UK saw an increased basic rate band limit of £45,000, it remained at £43,000 in Scotland.

Whilst it might seem that a freeze is often a good thing, where the freeze is on allowances or tax bands then, unfortunately, it isn’t. It wouldn’t have made any difference to anyone paying tax at the lower or basic rates in 2017/18 but it did mean that higher rate taxpayers in Scotland would hit the £43,000 threshold – and therefore start paying the higher rate of tax – sooner than a taxpayer in the rest of the UK. So Scottish higher rate taxpayers would be paying more tax than their English counterparts, to the tune of £400 (being the difference between the thresholds, at 20%) from 6th April 2017.
However, as if differing tax bands wasn’t enough, with the passing of the Scottish Budget in February 2018, the Scottish Government brought in 5 tax bands, as opposed to the 3 that the rest of the UK have to get by on. These are as follows:

Rate % banding
Starter Rate 19 £11,851 – £13,850
Basic Rate 20 £13,851 – £24,000
Intermediate Rate 21 £24,001 – £43,430
Higher Rate 41 £43,431 – £150,000
Top Rate 46 £150,001 +

Scottish tax rates will, for the first time ever, then, be appreciably different to those in the rest of the UK. As to the impact, well, according to the Scottish Government, compared to elsewhere in the UK, those earning less than £26,000 will pay slightly less income tax next year than if they lived elsewhere in the UK. Compared to 2017-18, for a given level of income, every Scottish taxpayer earning less than £33,000 in 2018-19 will pay less income tax than they did in the previous year; overall, 70% of Scottish income tax payers will pay less tax in 2018-19 compared to the previous year and, when considering current basic rate taxpayers, 81% will pay less next year than they did this.
However, whilst there is no doubt that many Scottish taxpayers will be better off than they were before, there is no getting away from the fact that a significant number will be worse off, not only in terms of their position in the previous year but also as regards a similar earning individual elsewhere in the UK.

All happening in a pay packet near you from 5th April 2018……..

A court ruling where a volunteer firefighter’s time on standby was declared as ‘working time’ is set to spark new heat for employers, according to a leading Tayside Employment Law expert.

The Court of Justice of the European Union (CJEU) ruled that a Belgian volunteer firefighter, Rudy Matzak, is a ‘worker’ and, under the Working Time Directive, his time on standby is now ‘working time’.

Alan Matthew, an Employment Law solicitor from Miller Hendry, which has offices in Dundee, Perth and Crieff, is urging businesses not to ignore this case which “adds to the already complex minefield for compliance with on-call workers.”

Under the Working Time Directive, ‘working time’ refers to “any period during which the worker is working at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice.”

When he was on call, Mr Matzak had to be at home and able to fulfil the requirement of an eight minute response time to reach the fire station, and the Court said that this obligation meant that he was limited in how he could pursue his personal and social life. This contrasted with a worker who may be asked simply to be contactable.

The knock-on effect for employers of standby time being deemed to be working time is that it has to be taken into account when complying with rest periods, working hours and the National Minimum Wage.

Alan Matthew commented:

“This latest judgement was in Belgium, but as we are still part of the EU, it is just as important here. Whether or not a worker on standby is ‘working’ will depend on the circumstances of each case, but the fact that the issue is complicated with grey areas does not mean that businesses can ignore it – ignorance of the law has never been a valid defence. Employers may have to pay substantial sums for back-pay that could be due.

“For any situation that seems unclear, it’s worth getting some independent advice. An easily made change to the way that on-call systems are operated might clarify things and take an employee out of a potential ‘working’ situation.”

The judgement follows hard on the heels of last year’s hearing by the Employment Appeal Tribunal of three cases – Focus Care Agency Ltd v Roberts, Frudd v The Partington Group Ltd and Royal Mencap Society v Tomlinson-Blake – which said that businesses must conduct a ‘multifactorial evaluation’ as there was no clear, hard and fast way to distinguish between on-call workers who are considered to be ‘at work’ and those who are not.

In any situation where the on-call claim is found to be ‘working’ time the National Minimum Wage Regulations (NMW) will apply. New rates for the National Minimum Wage come into force from April 2018, applicable to the various rates, including the National Living Wage for eligible workers aged over 25, and other age-related rates.

For many of our business and agricultural clients, their key focus is to keep their assets in the family with the challenges of Inheritance Tax not at the forefront of their minds. It’s not something businesses really want to have to think about.

It’s time for businesses to sit up, think about the future and take action as the Government has embarked on a review of the reliefs available and may potentially scrap them altogether.

We recommend that our business and agricultural clients conduct a review of their assets with their Lawyer and Accountant to ensure that they are maximising the reliefs available to them whilst preserving their assets to pass down to the next generation.

Most agricultural clients are “asset rich, cash poor” and are at risk of failing to take advantage of the reliefs available to them and risking their estate becoming liable to pay a considerable Inheritance Tax bill which could be avoided.

There is a common misconception around two specific reliefs – Agricultural Property Relief (APR) and Business Property Relief (BPR) – that if you own agricultural land, and/or a business, then the reliefs will be fully available at a rate of 100%.

Not all assets attract 100% relief. For example, some farmers believe their farmhouse will always attract relief at 100% which is not always the case. HMRC considers a number of factors when determining whether or not a farmhouse is entitled to APR. It’s not just enough to say it’s a farmhouse and used as part of the farming business and should therefore attract APR at 100%.

To avoid being caught out, contact a member of our Commercial Law team for advice on 01382 200000.

Leading Tayside solicitors and estate agents Miller Hendry has announced another key promotion, as it continues to expand and strengthen its team in Dundee.

Leann Brown has been promoted into the role of Associate in a move which enhances the Private Client Department in Dundee. Having worked with prominent law firms in Fife, Aberdeen and Dundee, the University of Dundee graduate joined Miller Hendry in 2013 and specialises in will drafting, powers of attorney, executry and trust administration, and estate planning.

John Thom, Chairman of Miller Hendry, said: “I am pleased to announce this promotion which underlines Miller Hendry’s ongoing commitment to investing in our people to meet the growing demand from clients for our range of specialist services.

All workers are protected from sexual harassment in the workplace. This protection comes from both Employment Law and Criminal Law, depending on the circumstances involved.

Sexual harassment is unwanted conduct of a sexual nature which has the purpose or effect of violating the dignity of a worker, or creating an intimidating, degrading, humiliating, hostile or offensive environment for them.

Something can still be considered sexual harassment even if it was not intentionally directed at a specific person. It is irrelevant whether or not the alleged harasser meant for the conduct in question to be sexual harassment.

Employers should make clear to workers what sort of behaviour would be considered sexual harassment and that it is unacceptable.

Examples of sexual harassment include:
1. Written or verbal comments of a sexual nature, such as remarks about an employee’s appearance.

2. Unwanted physical contact and touching.

3. Emails with content of a sexual nature.

4. Questions about the employee’s sex life or offensive jokes.

5. Sexual assault.

6. Displaying pornographic or explicit images.

Complaints of sexual harassment will usually only be considered at an employment tribunal if the worker makes a claim within three months of when the incident took place. Sometimes, however, a complaint of sexual harassment will be reported much later than this. Such a complaint should always be taken very seriously by the employer. It is normally useful for the worker and the employer to discuss what outcome is desired in these circumstances.

Where complaints of sexual harassment include sexual assault or physical threats, they could be considered under criminal law and this can involve different time limits. Workers should seek further advice in these circumstances.

Any worker who considers that they have been sexually harassed, or who feels they have seen sexual harassment take place, can make a complaint of sexual harassment. This being the case, a worker should check any policies their organisation might have on sexual harassment in order to find out to whom their complaint should be addressed.

Employers should always take complaints of sexual harassment very seriously and handle them fairly, sensitively and in line with their existing policies and procedures.

The National Minimum Wage (NMW) is the minimum pay per hour most workers under the age of 25 are entitled to by law.

The National Living Wage (NLW) is the minimum pay per hour most workers aged 25 and over are entitled to by law.

Both a worker’s age and whether or not they are an apprentice affects the rate payable.

On 01 April 2018, the rate per hour for those ages 25 and over increased from £7.50 to £7.83.

For those ages 21 – 24, the hourly rate increased from £7.05 to £7.38.
The hourly rate for those ages 18 – 20 increased from £5.60 to £5.90.
Those under 18 years of age saw an hourly increase from £4.05 to £4.20.
the rate for apprentices increased from £3.50 to £3.70 per hour.

A new rate will apply to the next pay reference period that begins on or after the date:

• A rate increase begins

• An employee reaches a new age bracket

Employers can be taken to court by HM Revenue & Customs for not paying the NMW/NLW.

There are, however, a number of people who are not entitled to the NMW or NLW, such as:

Volunteers or voluntary workers
Members of the Armed Forces
Company Directors
Self employed people
Work experience students (depending on the length of their placement)
Family members, or those who live in the family home of the employer who undertake household tasks

Most tenants of commercial property will now be familiar with Land and Buildings Transaction Tax (LBTT) in Scotland which replaced Stamp Duty Land Tax (SDLT) which applies within the rest of the UK.

Most tenants of commercial premises are aware (depending on the length of the lease and the rent payable) that an LBTT Return to Revenue Scotland should be made and LBTT paid at the point of entering into the lease. Many tenants, however, may not be aware that an LBTT Return may also be required to be submitted after three years or where the initial rent has been increased.

The Three Yearly Return

An LBTT Return should be submitted on the third anniversary (or within 30 days thereof) of the “effective date” which will normally be the date of entry. LBTT came into force on 01 April 2015. The first cycle of three yearly returns will therefore begin on 1 April 2018.

Because leases can change over a period of years e.g. by variation, extension, assignation, rent reviews etc. tenants are required to bear in mind that the three yearly Return may result in an additional payment of LBTT falling due.

Not every commercial tenant will require to complete the three yearly Return. As a rule of thumb, if LBTT was payable at the commencement of the lease a three yearly Return will be required. Returns are not required where:-

(a) Entry under the lease predates 01 April 2015 and SDLT was payable at the time (these leases do not fall within the LBTT Scheme).

(b) Leases are not notifiable for LBTT (usually where there is a short lease with a low rent).

(c) Where full LBTT relief applies (e.g. for Charities or group relief).

Assignation of Lease

Tenants who have taken on assignations of leases need to be particularly careful. The new tenant assumes the responsibilities in relation to LBTT. This means that a three yearly Return may require to be made based on the original date of entry. In addition, where there have been variations of rent under the lease the new tenant may be liable for additional LBTT at the point the three yearly Return is submitted.

Reminders

It is expected that Revenue Scotland will send out three yearly reminders to tenants which will be helpful. However, the onus will be on the tenant to submit the appropriate Return and tenants should not rely on receiving reminders.

Penalties

Since LBTT came into force there have been penalties imposed for late submission of Returns. This will include the three yearly Returns and applies even where no further tax is due. Penalties for failing to submit the Return timeously start at £100 and can increase to £1,000. There may also be penalties for late payment of LBTT.

Diary Forward

All tenants should make sure that they have diarised forward to complete and submit an LBTT every 3 years as appropriate.