GLOSSARY

Office holders definition

Published by a LexisNexis Employment expert

What does Office holders mean?

A person who is engaged by the employer as an office holder, for example a Director of a Board.

The status of a person as an office holder is not an employee for the purposes of employment legislation. His/her rights and duties are governed by Company Act legislation and the office he holds. It is typical for the employer to enter into a separate contract of employment (normally a service agreement) to employ him/her as an employee.

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Discrimination, victimisation and harassment claims by non-employees

This Practice Note examines who is protected and can bring claims under the Equality Act 2010 (EqA 2010), other than ‘employees' who bring claims under the ‘in employment’ provisions of EqA 2010, covered in Practice Note: Employment events which give rise to discrimination, victimisation and harassment claims.Occupational pension schemesThere are prohibitions against discrimination, victimisation and harassment and a duty to make reasonable adjustments which apply to various persons involved with occupational pension schemes, including trustees, managers and employers. These provisions are covered in Practice Note: Occupational pension schemes, personal pension contributions: equality protections and exceptions.The meaning of 'discriminate'The workplace provisions of EqA 2010 (ie Part 5, which comprises EqA 2010, ss 39–83) set out various ways in which various categories of person must not 'discriminate'. Each of these prohibitions relates to some aspect of a specific type of event which occurs in the course of a work relationship. For example, as regards the terms of employment which an employer offers to a job applicant, the Act states that 'An employer (A) must not discriminate against a person (B)... as to the terms on which A offers B employment'.It is important to understand that the use of the word 'discriminate' in this context refers to multiple different types of conduct which are prohibited under the Act (ie to multiple different

Equal pay: how claims work

This Practice Note examines the mechanism that is used in equal pay claims, known as equality of terms claims under the Equality Act 2010 (EqA 2010).Prerequisites for an equal pay claimThe EqA 2010 contains provisions designed to achieve equality between men and women in pay and other terms of employment where the work of an employee and their comparator—a person of the opposite sex—is equal. It does so by providing for a sex equality clause to be read into the employee’s contract of employment. This is designed to ensure parity of terms between the employee and their comparator. A similar provision—referred to as a sex equality rule—is implied into the terms of pension schemes.The EqA 2010 imposes an equality clause into a person's (A's) terms of work, or an equality rule into an occupational pension scheme, where A:•is employed on work that is equal to the work that a comparator of the opposite sex (B) does, or•holds a personal or public office and does work that is equal to the work that a comparator of the opposite sex (B) doesTherefore, in order to be eligible to bring an equal pay claim, A must:•be employed, or hold personal or public office (see Meaning of 'employed' and Office-holders below)•be able to compare their work to that of a comparator

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Guide and script for holding standard creditor meetings—the position under the Insolvency (England and Wales) Rules 2016

Guide and script for holding standard creditor meetings—the position under the Insolvency (England and Wales) Rules 2016 Introduction The time is now [insert the exact time] and I am opening the meeting of creditors of [insert name of the company] called as a general meeting of creditors under the Insolvency Act 1986 and the Insolvency (England and Wales) Rules 2016 (IR 2016), SI 2016/1024 as amended. I am [insert name], of [insert firm or company name] [insert details of role of the chairperson, eg adviser/[joint] administrator/[provisional] liquidator etc]. The meeting[s] that [is OR are] taking place today [has OR have] been convened by me (or requisitioned by creditors) for the purposes of dealing with the following resolutions: • fixing the basis of the office-holder’s remuneration; • obtaining sanction from the creditors (in the absence of a [creditors’ OR liquidation] committee having been formed previously); • forming a [creditors’ OR liquidation] committee; • accepting proposals; • removing the office-holder [if that is the purpose of the requisitioned meeting]; • appointing a new office-holder [to replace the removed office-holder]; and • that the costs of requisitioning a meeting be paid out of the assets of the company. I have been appointed as chairman of [each of] the meeting[s]. The agenda for today is as follows: First Administrative matters Second Overview of the background to the case and the reasons for the calling of the creditors’ meeting Third Explanation of

Conditional fee agreement for use with an insolvency office-holder on or after 6 April 2016

Conditional fee agreement for use with an insolvency office-holder on or after 6 April 2016 Conditional fee agreement for use with an insolvency office-holder on or after 6 April 2016 This Agreement is made on [date] Parties: 1 [Company Name] [(in liquidation, etc)] [(the ‘Company’) acting through] [name(s) of insolvency practitioner(s)] [(the ‘Liquidator’), (the ‘Administrator’), etc] [(and all successors in title)] [acting as agent of the Company and without personal liability, save as provided for in this Agreement] ([together] the ‘Client’) [both] of [address]; 2 [Firm Name and Address] (the ‘Firm’). It is hereby agreed as follows: 1 Definitions 1.1 In this Agreement: Appeal • means any appeal to the Court of Appeal or Supreme Court from a decision of a lower court, or to a Judge from a decision of a District Judge, Registrar or Master, in relation to the Claim. Basic Costs • means the fees of the Firm for the work done by the Firm for the Client in relation to the Claim on an hourly rate basis from [date of commencement of work covered by CFA—can be retrospective]. The hourly rates at the date of this Agreement and subject to review on 1st January of each year are set out in the attached Schedule 3. Claim • means the claim(s) against the Defendant(s) in negligence; or under the provisions of the Insolvency Act 1986 (IA 1986), the Companies Acts 1985 and

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Do trustees in bankruptcy have to disclose the sale price of a particular asset or assets in their report to creditors?

Do trustees in bankruptcy have to disclose the sale price of a particular asset or assets in their report to creditors? The general function and role of the trustee in bankruptcy (trustee) is to get in, realise and distribute the bankruptcy estate in accordance with sections 305–335 of the Insolvency Act 1986 (IA 1986). The trustee's other major function is to review, adjudicate on and agree creditors' claims. For general guidance, see Practice Note: Roles, powers, functions and duties of a trustee in bankruptcy. A trustee’s reporting to creditors The Insolvency (England and Wales) Rules 2016 (IR 2016), SI 2016/1024, Pt 18 deals with the reporting and remuneration of office-holders. In particular, IR 2016, SI 2016/1024, r 18.3 outlines what an office-holder’s progress report in an administration, winding up or bankruptcy must contain. This includes: • an identification details for the proceedings • a summary of account of receipts and payments during the period of the report (emphasis added) • the information relating to distributions required by IR 2016, SI 2016/1024, rr 18.10–18.13 as applicable, and • any other information of relevance to the creditors Furthermore, according to the Statement of Insolvency Practice (SIP) 7—which deals with preparation of insolvency office-holders’ receipts and payments of accounts—final statements of accounts are required in bankruptcies, there is no statutory format. See in particular paragraphs 1–3 and 14–16 of SIP 7. We have not been able to

Is conduct of a non-employee minority shareholder towards a company director capable of amounting to a breach of the implied term of trust and confidence and/or the constructive dismissal of the company director?

Is conduct of a non-employee minority shareholder towards a company director capable of amounting to a breach of the implied term of trust and confidence and/or the constructive dismissal of the company director? A person appointed as a director of a company is an office-holder and is not, by that appointment alone, also an employee of the company. A director may however enter a service agreement with the company and thereby become its employee as well as a director of it. See Practice Note: Office-holders. A service agreement will set out the parties to the contract and record the terms and conditions of the director’s employment. See, for example, Precedent: Executive service agreement. For the purposes of this Q&A, it is assumed that the director was also an employee of the company. The termination of an employment contract by the employee will constitute a dismissal if he or she is entitled to terminate it because of the employer's conduct. This is colloquially known as a 'constructive dismissal'. Constructive dismissal occurs when: • there has been an actual or anticipatory breach of contract by the employer which is a fundamental or repudiatory breach, ie one that goes to the root of the contract so as to be sufficiently serious to justify the employee's resignation • the employee resigns in response to the breach, rather than for some other reason • the employee

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Restructuring & Insolvency weekly highlights—28 July 2022

This week’s edition of Restructuring & Insolvency weekly highlights includes: the first approval of a restructuring plan for a SME (Re Houst Ltd), mental health considerations in connection with a bankruptcy (Hyde v Djurberg), and the impact of an annulment of a bankruptcy order on limitation (Khan v Singh-Sall and Habib Bank), plus a round-up of other news and cases for restructuring and insolvency professionals.

Bankruptcy IVA providers, secret commissions and public interest winding-up petitions under section 124A of the Insolvency Act 1986 (Secretary of State for Business, Energy and Industrial Strategy v Vanguard Insolvency Practitioners Ltd)

Restructuring & Insolvency analysis: This successful public interest winding-up petition, which was at first contested but then ultimately unopposed, was presented on the grounds that the respondent individual voluntary arrangement (IVA) providers (respondent companies) were carrying on their business in a way which lacked transparency and commercial probity, and which offended the spirit if not the letter of Statement of Insolvency Practice (SIP) 9. The respondent companies used various third party case management companies to conduct the IVAs and paid these third parties substantial fees for doing so. These fees made their way back to the respondent companies in the form of commission/revenue sharing. Neither debtors nor creditors were informed that the respondent companies would be benefiting from ‘secret commissions’. Accordingly, monies within the IVA were not applied in the interests of creditors/debtors, but for the benefit of those controlling the respondent companies. Written by Alex Akin, associate at Keidan Harrison LLP.

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126. Public offices: recommendations for appointments etc.

126. Public offices: recommendations for appointments etc. A person (A) who has the power to make a recommendation for or give approval to an appointment to a certain public office1 must not: (1) discriminate against2 or victimise3 a person (B): (a) in the arrangements A makes for deciding who to recommend for appointment or to whose appointment to give approval4; (b) by not recommending B for appointment to the office5; (c) by making a negative recommendation of B for appointment to the office6; (d) by

7. Office-holders.

7. Office-holders. The categorisation of an individual as an office-holder1 tends to be of more significance in the law relating to income taxation than in employment law2. While it is true that in the case of certain major offices the individual's status as an office-holder may mean that he is not an employee3, in most cases this will not be so and there will be nothing to prevent the ordinary definition of 'employee' from being satisfied4. Even if the office-holder does not qualify as an employee, there may still be aspects of employment law applicable

Office holders is referenced 4 in Halsbury's Laws of England

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