Breaking News
Promotions at WJM - Jacqui Mitchell and Brendan Kelly
Wright, Johnston & Mackenzie has announced two significant promotions in its Energy and Private Client and Family Office Groups.
Based in the firm’s Glasgow office, Jacqueline Mitchell has been promoted to Associate within the Energy Group. Having trained with the firm, Jacqui has progressed to become a vital part of the Group’s offering, especially in its advice to its blue chip renewable energy clients. The Group’s head Andy McFarlane commented that “Jacqui is well known in the sector now for the quality of service and knowledgeable advice which she gives to some of our most important clients, and we are delighted to recognise that reputation which she has worked so hard to gain”.
Separately, the firm has also promoted Brendan Kelly to the post of Senior Manager within the Private Client and Family Office Group, also based in Glasgow. Within the firm, the post has the same status as Associate, and recognises Brendan’s commitment to providing essential tax advice to the firm’s client base as part of its wider private client offering.
Susan Hoyle, head of the Group, commented that Brendan had “embraced WJM’s vision of seeking to benefit our clients by providing them with a truly client centric service” and that “in his development and promotion of our Personal Wealth Planning service, in particular, Brendan has helped a great number of our clients achieve better control of their own affairs”.
The appointments take effect from 1 December 2011.
More on Jacqui and Brendan can be read by clicking the links below.
New Trust & Tax Consultancy Service launched by WJM
Leading Trust and Tax solicitors Wright, Johnston & Mackenzie (WJM), have a launched a specialised trusts and tax consultancy service.
Aimed at advisers in the fields of trust and tax law, the new service provides an additional support resource for those professionals who have clients for whom trust and tax law is very important, but who don’t specialise in the area.
Ian Macdonald, head of WJM’s Trusts and Tax Consultancy Service, said ‘Trusts have been through many changes in the last 10 years, the most significant being to their tax treatment. These changes have eroded some of the benefits previously associated with trusts and have significantly added to the complexity of advising on and managing trusts.”
“Our new service has grown in response to demand from other professionals for solid, expert advice in this field. We provide a resource which can be used as and when needed, and which can be as visible or invisible to the ultimate client as the adviser wishes. Common themes that we’re consulting on include assistance with the understanding of trusts, variations of trusts and wills and the sometimes complex tax and other implications of setting up, maintaining and finally winding up trusts.”
The new service uses the expertise of WJM’s highly regarded Private Client and Tax teams, who already advise a considerable number of personal, charitable and other trusts. Every member of WJM’s Private Client team is a full member of the Society of Trust and Estate Practitioners (STEP) or an accredited tax specialist.
More information from Ian Macdonald: .(JavaScript must be enabled to view this email address)
Important changes to employment law announced
At the Conservative Party Conference, George Osbourne announced two important changes to Employment law .
The qualifying period for unfair dismissal will be increased from one year to two years, with effect from 1st April 2012, and fees will be introduced for bringing an employment tribunal claim.
As the law stands unless an employee falls within one of the exceptions, he or she must be continuously employed for one year before they can make a claim of unfair dismissal against their employer. In future, it will be necessary to be employed for two years. This reverses an earlier change in the law that reduced the qualifying period from two years to one.
The second important change is the introduction of fees payable by claimants for bringing an employment tribunal claim. The Government hopes this will reduce the number of claims brought.
The details of what the fees will be has not yet been confirmed. It is expected there will be:
- A £250 fee upfront when lodging a claim
- A further £1000 fee when the hearing is listed to appear at a Tribunal
- Higher fees if the claim is for over £30,000.
In addition, the fees will be:
- Refunded if the claimant wins
- Forfeited if the claimant loses, and
- Waived for those with no money
It is not clear what “no money” means. This will be very important. For example, if it means simply those eligible to claim Jobseeker’s Allowance, then it is likely most former employees will likely not have to pay fees to bring a claim.
The fee of £250 appears to be a very high fee for lodging a claim. It is significantly higher than the fee for lodging a court action, for example, and appears to be aimed at discouraging claims.
We will keep you advised as legislation is enacted.
More information from the Employment Team:
Martin Stephen: .(JavaScript must be enabled to view this email address)
Liam Entwistle: .(JavaScript must be enabled to view this email address)
Planning Team expands
WJM has boosted its planning team with the recent addition of solicitor Melanie Kane, specialises in planning and environmental law.
Partner Fraser Gillies, who heads the Edinburgh based team, said “we are delighted to welcome Melanie to the firm. The past year has been busy and we have seen increasing demand for advice across a wide range of planning and environmental issues, particularly from our renewables sector clients. Melanie brings with her several years’ experience in this area and will no doubt play a key role in helping us develop our planning practice further”.
WJM’s planning team provides advice across the whole range of planning issues, particularly in the renewables sector, and in the past year has advised on a number of onshore wind and hydro projects for a variety of developers.
More on Melanie here.
More on the Planning team here
Expansion at WJM Inverness
WJM Inverness has expanded with the recruitment of Donna Seivewright to the office.
She joins Angus MacLeod at a very exciting time for WJM Inverness. Like Angus, Donna is returning to the Highlands after working in Edinburgh for a number of years. A native of Moray, she welcomed the opportunity to further her career through moving north.
Donna’s main area of work will be in corporate and commercial law, and she’ll be working with Angus to help clients and to develop WJM Inverness.
Angus, who is head of WJM Inverness, said “WJM’s unique client-centric service makes demands on us as lawyers, and our rapidly growing local client base means we are expanding the Inverness office at a far faster rate than we anticipated. Finding someone of Donna’s calibre who wanted to come back to the Highlands to live and work has been a big step forward in building our localised service delivery.”
More information from Donna Seivewright: .(JavaScript must be enabled to view this email address)
Tax Returns - Avoid new penalties by filing promptly
If you complete a tax return each year, you need to be aware of the new rules, introduced on 6 April 2011, in relation to penalties.
From 6 April 2011, a late tax return now incurs an automatic £100 penalty - previously this would be reduced to nil if there was no liability to tax or, if any tax due was paid on time, then the penalty would be reduced accordingly.
If your tax return is 3 months late, you will be charged an automatic £10 per day penalty up to a maximum of £900.
If your return is 6 months, late the penalty will be either 5% of the tax due or £300, whichever is the greater.
If you prepare your own tax return or have assistance in doing so, or if you help others including family members, then you need to be fully aware of the above penalty regime.
The simple way to avoid any penalties is to let us do your tax return for you. Our fees are affordable and you know your tax return will be submitted on time.
More information on WJM’s tax return service from Brendan Kelly: .(JavaScript must be enabled to view this email address)
Bribery Act 2010 - An Update
On the 1st July 2011 the Bribery Act 2010 will come into force and update our country’s century-old bribery laws.
The Ministry of Justice have recently published a 45-page guide to accompany the Act offering guidance for employers. The guidance gives employers three months from its publication to prepare for the legislation and relates to how they can reduce their exposure to bribery offences under the Act.
The guidance sets out six principles, which are non-prescriptive, that may assist businesses in formulating procedures appropriate to their specific needs. These principles are: Proportionality, Top Level Commitment, Risk Assessment, Due Diligence, Communication and Monitoring and Review.
The Act will establish four main offences:-
- Section 1 - Bribing another person
- Section 2 - Requesting, accepting or receiving a bribe
- Section 6 - Bribing a foreign public official
- Section 7 - A new offence whereby failure by a commercial organisation to prevent bribery by a person who provides services to it. It is a full defence for an organisation to prove that despite a particular case of bribery it nevertheless had adequate procedures in place to prevent persons associated with it from bribing.
Corporate Hospitality
The guidance sets out examples of acceptable and unacceptable forms of corporate hospitality, something that was missing previously. The draft guidance said that hospitality needed to be “reasonable and proportionate” leaving some firms in doubt about how they could entertain clients. The new paper explicitly states that providing flights, accommodation, fine dining, and tickets to sporting events would not necessarily create problems however firms have been warned that they still need to ensure that their corporate entertainment spend was proportionate.
Facilitation Payments
The guidance makes it clear that facilitation payments (small payments paid to facilitate routine Government actions) are still unlawful, but says that it recognises the problems that businesses face in some parts of the world and in certain sectors.
International Aspects
As for International companies, the Justice Secretary Ken Clarke has said that he would leave it up to the courts to decide whether foreign firms listed on the London Stock Exchange or those with small subsidiaries in the UK would be covered by the Act but noted that that it will be necessary for the Prosecution to establish a ‘demonstrable business presence’ in the UK before the provisions applied.
Overall the guidance should be considered in conjunction with the joint guidance issued by the Director of Public Prosecutions and the Serious Fraud office, and appears to reinforce the message that prosecutions under the Act will take a largely common sense approach. Companies should note however that aside from potentially expensive reputational damage, commercial organisations could be liable to an unlimited fine.
Further information on the Ministry of Justice Guidelines at their website.
Organisations will have to look at their working practices and, in particular, their policies which should be changed to encompass the guidelines. The WJM Employment team can work with you to advise you on introducing new working practices and policies.
More information from Martin Stephen: .(JavaScript must be enabled to view this email address)
Important Employment Alert - Changes to Termination Payments taxation come into force 6th April
On 6 April 2011, the Income Tax (Pay As You Earn) (Amendment) Regulations 2011 come into force. The Regulations will amend the PAYE treatment of post P45 payments to ex-employees by requiring employers to deduct tax using a new tax code (OT) which gives no personal allowance and requires deductions at basic rate (20%), higher rate (40%) and additional rate (50%).
As the law currently stands, if an employer makes a termination payment to an employee after the P45 has been issued, and the payment is taxable (in whole or in part), it is required to deduct tax at basic rate only. Therefore these new arrangements could result in a cash flow disadvantage for employees. They will, however, be able to recover any over-deduction either later in the year via PAYE or under self-assessment.
Employers may wish to consider making any payments before issuing the P45, in which case they will be required to operate the employee’s existing tax code, giving credit for personal allowances and taking into account the employee’s other income and unused basic rate band, etc. But again, because of the way tax codes work, this could result in a cash flow disadvantage for employees if the dismissal takes place at the beginning of the tax year.
From an employer’s perspective, it does not matter whether payments are made before or after issue of the P45, as long as it deducts the correct amount of tax.
The changes however mean that the post-P45 route no longer offers the cash flow advantages or the negotiating opportunity it used to.
Employees may now request to make payments either before or after the P45 is issued, depending on which date is most advantageous for their own cash flow purposes, however, that will be a matter for the employee to determine and not for the employer to spend time working out.
If you are making termination payments shortly, we can help you stay on the right side of the law and HMRC.
More information on this issue from:
Martin Stephen .(JavaScript must be enabled to view this email address)
Andrew Wilson .(JavaScript must be enabled to view this email address)
Liam Entwistle .(JavaScript must be enabled to view this email address)
SNH issue draft guidance on siting and design of single and small groups of turbines in the landscap
Scottish National Heritage (SNH) has produced a draft of recommendations for the erection of single and small groups of small turbines (defined as between 15m and 50m in height to blade tip). The draft is currently open for consultation.
The draft notes that proposed groupings of small turbines are becoming larger, and that cumulative impacts are starting to occur with existing, larger scale wind farm development.
SNH are of the view that a need has arisen for further guidance over and above the previous guidance in “Siting and Designing Windfarms in the Landscape” issued 2009, and other existing guidance dealing with small scale turbines, which focuses on the environmental impacts of this type of developments, but which does not specifically address issues of siting and design.
The intention is that the new guidance would be used in cases where SNH would not routinely be consulted because there are no specific landscape designations, but where it is thought that the landscape and visual impacts of the proposal could be reduced by adherence to the design principles set out in the document.
Some of the key points from the guidance include:
- Small turbines tend to be located closer to existing structures and features such as a vegetation, therefore it is all the more important that the turbines relate logically to adjacent landscape features
- Specifically where located adjacent to built structures or vegetation features in a rural location turbines should be no more than 50% higher than these
- The smaller numbers of turbines involved in most proposals means there is greater scope for producing a coherent visual pattern related to the landscape
- There should be less need for micrositing conditions in planning permissions and developers should be as certain as possible of the final locations of the turbines
- There should be greater scope for locating turbines away from ridgelines due to their lesser wind resource requirements, and more scope for use of screening (using both vegetation and topography) to reduce landscape and visual impacts.
- The issue of respect for landscape perspective is likely to become more important as a range of different sizes of turbines become features in the landscape.
The guidance also recommends that local planning authorities should prepare policies specifically dealing with sub-20MW schemes to address issues of location, design, and cumulative impacts.
The draft is open for consultation until 1st April 2011 and the link to the consultation is
here
More information from Fraser Gillies: .(JavaScript must be enabled to view this email address)
Important Amendment to Default Retirement Age Regulations - Employers need to act now
In an amendment to the Default Retirement Age Regulations, lawful retirement at 65 or over is allowed but employers only have a short time, until 5th April 2011, in which to act.
Read the full story in our Employment Briefing.
WJM help secure planning consent for 12 turbine Meikle Carewe wind farm on behalf of RES
WJM help secure planning consent for 12 turbine Meikle Carewe wind farm on behalf of RES
Wright, Johnston & Mackenzie (WJM) has helped renewable energy developers, RES, secure planning consent on appeal for a 12 turbine wind farm at Meikle Carewe, Aberdeenshire.
The application for the development near Stonehaven, Aberdeenshire, was refused planning consent in April 2010. Fraser Gillies, WJM’s Renewable Energy planning specialist acted for RES in the successful Appeal to the Scottish Ministers. The Appeal was determined on the Statement of Appeal submitted by WJM on behalf of RES and the Council’s response.
Fraser commented “It was a pleasure to work with RES and we were delighted to be able to help secure a consent for them for this project. It was also an example of the new system of planning Appeals leading to a swifter determination than might otherwise have been the case”
Allan Johnston, Head of Development for RES in Scotland, commented: “We were pleased to have WJM act as agent for us with this appeal. We are delighted with the decision; projects like Meikle Carewe will contribute to Scotland’s ambitious renewable energy targets and bring significant local economic and environmental benefits.”
More information from Fraser Gillies: .(JavaScript must be enabled to view this email address)
Default Retirement Age Abolished
Further to speculations in the September issue of our Employment Briefing, the government has since confirmed that the default retirement age (DRA) will be abolished from 1 October 2011.
In spite of widespread concerns voiced by employers during the consultation process, the Government believes that the dismissal of older workers should be managed either by discussion or by formal performance procedures
Transitional Provisions
Although the DRA will be abolished as of 1 October 2011, there will be a transitional period in place from 6 April 2011.
Currently, employers must provide at least 6 months’ notification to employees that they will be retired at or after 65, and advise them of their right to request to work beyond retirement.
Under the new provisions, employers can continue to issue notification of retirement to employees up until 5 April 2011 if the employee’s retirement date is before 1October 2011. Effectively, the latest date on which to serve notification would be 30 March 2011 for an employee retiring on 30 September 2011.
As things currently stand, employers may issue a short notice of retirement as late as two weeks before the retirement date. The retirement will not automatically be fair (unlike with six months notice being given) however so long as the same procedure is followed it is likely to be found as fair.
Short notice retirements will be repealed from 6 April 2011. In practice, these new provisions mean that employers will be only be able to provide short notice of less than six months from 31 March 2011 to 5April 2011.
Retirement after 1 October 2011
The DRA will no longer apply from this date. This means that, on the face of it, dismissal by retirement at any age on or after this date will be unlawful, unless employers can objectively justify it.
From this date, a retirement (whether objectively justified or not) will be deemed as a dismissal and will be removed as one of the potentially fair reasons for dismissal. This means that employers who want to ‘retire’ an employee will need to rely on one of the five remaining permitted reasons for dismissal (conduct, capability, redundancy, illegality or some other substantial reason (SOSR)). A fair procedure still needs to be followed.
The removal of the DRA does not mean that employers will never be able to retire anyone. Retiring an individual where a retirement age is objectively justified is likely to amount to SOSR and is a potentially fair reason for dismissal. The guidance notes make clear that older workers can still retire voluntarily.
Following these new provisions, employers have two choices: they can decide to either retain a retirement age, or operate without one.
Option One: Retaining a retirement age
Keeping, and justifying, a uniform contractual retirement age for all employees in the future will not be without its difficulties. It could prove problematic as Employers will be expected to demonstrate why they wish to retain a retirement age, and should be prepared to explain (with appropriate objective justification).
There has been some recent case law supporting the proposition that it is possible but until the position is clarified, this will be uncertain territory for employers. Consultation with employees of all ages will almost certainly be required, as well as a thoughtful consideration of job roles and requirements. It is unlikely that relying on assumptions will suffice.
Option Two: Operating without a retirement age
ACAS guidance suggests having open discussions with all employees and see as a good way of raising the issue of retirement with employees, as well as using it as an opportunity to discuss the organisation’s plans. The guidance gives a number of examples of how this might work in practice.
An alternative would be to deal with the issue by way of workplace mediation to provide a confidential, without prejudice way of openly discussing the issue.
Insured benefits
The Government has recognised that certain group-risk insured benefits (for example, medical insurance, life cover, life assurance etc) cost employers more for older workers. In its response to these concerns, the Government has introduced an exemption in respect ‘group risk insured benefits’. It will no longer be unlawful to discriminate on grounds of age when providing such benefits.
More information from the Employment Team through .(JavaScript must be enabled to view this email address)
WJM opens new branch in Highland capital
Leading Scottish law firm Wright, Johnston & Mackenzie LLP (WJM) is opening a new office in Inverness in January 2011, expanding firm’s geographical reach across Highlands and Islands and bringing to region, it’s original approach to provision of legal advice. Led by Inverness native Angus MacLeod, the new office offers wide range of legal specialisms and aims to make positive contribution to local economy.
WJM’s Chairman, Colin Brass, explains why the firm has chosen to expand into the Highlands & Islands.
“The breadth of WJM’s services combined with our deep specialisms and a distinctive attitude about what lawyers should do for clients are in tune with the needs of the Highlands and Islands and we are confident that they offer a strong and distinctive proposition.
“We aim to do much more than merely react to what our clients ask us to do for them. Our lawyers are tasked with anticipating and articulating our client’s needs and offering creative and helpful advice, often even before our clients themselves know they need it. This way we make a really valuable contribution to the success and well-being of our clients, their families and their businesses.
“We also offer the range of technical expertise that matches our client’s needs. For example, we have a market-leading practice in advising family businesses and business families, with access to the best of national and international expertise in that growing field. Our established renewable energy team goes from strength to strength, as do our teams providing advice on commercial law whether for start-ups and spinout companies, or more mature businesses. We have a great deal of experience in advising on property, private wealth, tax, employment law and agricultural law along with intellectual property and corporate law.
“All of these services will be available through our new office, with back-up from teams of specialists in our established centres in Glasgow and Edinburgh where required.”
The new Inverness office is being headed up by WJM partner Angus MacLeod, an accomplished and award-winning commercial lawyer. Originally from Inverness, Angus - a fluent Gaelic speaker - was the natural choice to lead the new office.
“Returning to the Highlands and open a new WJM office is exciting for me, both personally and professionally. Inverness is my home town, so it’s nice to be back. This is an exciting time for the Highlands, with the UHI network on the cusp of full University status and the promise of super-fast broadband meaning Highland businesses will continue being able to compete with the best in the world.
“Our existing clients in the Highlands and Islands prove that geography is no barrier to success, but that said there’s nothing like having your lawyer literally ‘down the road.’ My colleagues and I are looking forward to becoming part of the business community here, and we’ll be out and about across the region.
“I believe our new office offers an opportunity for us to make a significant contribution to the economy here by helping local businesses and people achieve their ambitions for themselves, their families and their businesses.”
Highlands and Islands Enterprise’s Financial and Business Services team says the growing market for specialist support reflects the innovative nature of north businesses.
“The Highlands and Islands is a region focused on growing businesses and developing emerging industries, including sectors like life sciences and renewable energy. Creating the right conditions locally to support our businesses, including specialist legal services, is vital. WJM has a long history of working with clients in the Highlands and Islands and we are delighted it is creating a full time base here,” said HIE’s Joyce MacLennan.
The firm’s new Inverness office will be based in Kintail House in Beechwood Business Park, telephone 01463 732554.
Angus MacLeod can be emailed on .(JavaScript must be enabled to view this email address) and more can be read about him here
WJM helps vento ludens develop first UK onshore wind project
Wright, Johnston & Mackenzie’s (WJM) market leading renewables team have just helped renewables developer vento ludens bring their first onshore wind project in the UK to financial close. The project, a 4.6 MW two-turbine scheme at Muirake Farm, near Banff, is the company’s first consented onshore wind project in the UK.
WJM acted for vento through the process from start to finish. The team negotiated option and lease agreements, provided planning advice and helped secure a consent issued under the Council’s scheme of delegation, and then successfully completed negotiation of all property, financing, power purchase agreements and other ancillary documentation necessary to allow the project to proceed to the final construction phase.
The multidisciplinary team was lead by Andy McFarlane, with planning advice being provided by Fraser Gillies and corporate advice from Ken Long and Ewan Hall. Andy McFarlane said “We were delighted to be able to work with vento ludens on this project. We were able to demonstrate the breadth and depth of experience within the renewables team, and were able to call on a range of specialisms to take the project from inception, through the planning system and to financial close. ”
vento ludens’ UK Managing Director Dr Jay Butler said “ It has been a real pleasure working with such an exceptionally capable legal team. Their excellence and professionalism are a credit to WJM and I look forward to working with Andy’s team further in 2011.”
Construction of the 4.6 MW scheme is now expected to start in November 2011.
More information from Andy McFarlane: .(JavaScript must be enabled to view this email address)
Read more about WJM’s Renewables Team and the type of work they do - Renewables at WJM
