0800 652 3371

Shielding to be Paused

Shielding is to be paused in England and Wales with effect from 1 April 2021.

The clinically extremely vulnerable were last advised to shield in England from 5 January 2021, following the imposition of the current national lockdown. The Department of Health and Social Care has now published a notification letter for that group to the effect that from 1 April, they will no longer be advised to shield and will not be eligible for statutory sick pay on the basis of being advised to shield. It states: “Everyone is currently advised to work from home where possible. If you cannot work from home, you should go to work.” The letter also notes that employers are required to take steps to reduce the risk of exposure to Covid-19 in the workplace.

At the time of writing, the shielding guidance in England states that it was updated on 18 March 2021 but does not yet reflect the latest position.

The Welsh Government has also confirmed that shielding measures for the clinically extremely vulnerable will be paused in Wales from the same date. That group was last advised to shield from 22 December 2020.

The shielding guidance in Wales was also last updated on 18 March, and refers to this anticipated change. It confirms that, from 1 April: the clinically extremely vulnerable are to go to work if they cannot work from home, as long as the business is Covid-secure; that the guidance will be updated further on 31 March; and that a new letter will be sent to the clinically extremely vulnerable in Wales in the coming weeks.

For advice on any employment-related issues arising in connection with Covid-19, please contact me on 01952 211010 or email john.merry@lblaw.co.uk.

Commencement in Any Language

When it comes to development which has been authorised by planning permission, commencement means different things at different stages. If a planning permission is in danger of expiring, commencement of the development in time is crucial to keep the permission alive. If a developer is wondering whether a section 106 obligation may have been triggered, the question becomes whether commencement has occurred or whether any works are merely preliminary works which have been excluded from the definition of commencement in the section 106 agreement. Finally, for the purposes of the Community Infrastructure Levy (‘CIL’), payment, which may in full or in instalments, becomes due from the date that a chargeable development is commenced.

Commencement is known by different names, depending on which procedure is under consideration. In relation to preserving a planning permission, the relevant legislation requires that development “must be begun” within a time period specified in the planning permission or a default period of three years for England and five years for Wales. This consequence of not beginning development within that time period is that the permission will expire, in the sense that any development carried out after the time period will not be authorised by the permission.

Development begins when a material operation which is comprised within the authorised development starts. A material operation is defined in section 56(4) of the Town and Country Planning Act 1990 and essentially means any work of construction or demolition of a building, certain works for the foundation of a building, any operation for laying out or constructing a road and a change of use (subject to certain exceptions).

What are Pre-commencement Conditions?

In order to come within the planning permission, the development must be begun in accordance with conditions attached to it, including conditions which prohibit the start of development until certain procedures are carried out, known as pre-commencement conditions. This is an area of planning that has been the subject of much case law debate which is outside the scope of this article. However, one point which is relevant to this article is that, as long as pre-commencement conditions are complied with and what the developer does is within the development permitted by the permission, minor works can be sufficient to start and therefore preserve planning permissions.

Section 106 agreements or undertakings, if required, are almost always completed before the grant of planning permission. They contain obligations on the developer, which could be restrictions, obligations to carry out works or to pay contributions, which the planning authority requires to make the development acceptable.

Section 106 agreements refer to the commencement or implementation of development in two ways. Firstly, section 106 agreements will often not become effective or ‘in force’ until the planning permission is granted and development commences. This is an acknowledgement that a developer does not have to implement a particular permission, just because it is granted, and can choose to develop their land under alternative permissions or schemes.

Section 106 agreements also often carve out certain works to avoid triggering obligations which are due on commencement of development while the developer is carrying out preliminary site works. Therefore commencement of development is often a slightly different concept, depending on whether you are talking about preserving a planning permission or triggering an obligation in a section 106 agreement. It means different things and is called different things, much like ‘Love’ in the 1980s song ‘Love in Any Language’ by Christian singer Sandy Patti, from which I made up the title of this article to make it seem even more interesting than it already is.

What Else Should Developers Consider?

In addition to the above, developers building in authorities which have adopted a CIL charging schedule have to consider the definition and consequences of the commencement of a development within the CIL Regulations. They are under an obligation to notify the charging authority (which is the same as the LPA) of their intentions to commence development at least a day before commencement. The CIL charges become due on commencement of development. A lack of awareness of this process can attract surcharges and have the consequence of moving forward payments which were supposed to be made in instalments.

In the appeal decision of Anon v Cotswold District Council, decided on 3 March 2021, the inspector considered whether the widening of an access fell within the definition of commencement as set out in the CIL Regulations. The regulations state that, subject to certain exceptions, development is commenced on the earliest date that a material operation is carrying out on the development site. ‘Material operation’ has the same meaning in the regulations as in section 56(4). The exceptions relate to situations where a permission has previously been granted for the same development, for instance section 73 permissions which relate to the variation of conditions on a previously granted permission.

The development was for the conversion of a gospel hall. The authority concluded, after a routine visit, that the presence of some metal fencing, a pile of rubble, a portable toilet, a small digger and a skip was sufficient evidence that development had commenced without the developer serving a commencement notice. A demand notice was served on the developer for the CIL charges and a surcharge.

The developers appealed and countered that the photographs of the items above, which were produced by the authority during the appeal, did not demonstrate commencement of the development. They stated that some of the items were there so that an existing vehicular access could be widened to enable equipment to be delivered to the site to allow development to commence on a certain date. The inspector upheld the appeal because the widening of the vehicular access did not form part of the development authorised by the permission.

It could be that the authority did not give the developer a chance to put forward this reason for the skips etc, did not properly consider what the developer had to say or did not believe the developer. However, it should be noted that that is the kind of evidence that is often presented to LPAs to demonstrate that a development under a planning permission has been commenced within the time relevant time period. The key issue is the wording in section 56(4), which was highlighted in the inspector’s decision, that the material operation (however minor) had to be ‘comprised within the development’ authorised by the planning permission.

Whether the question at hand is keeping a permission alive, CIL liability or the triggering of a section 106 obligation, commencement is an issue that sometimes requires the help of experts. The planning team at Lanyon Bowdler is able to assist with this or any related issues. Please contact us for further information.

False Claims Made by Local Maternity Units Mean Millions to Be Repaid in NHS Funds

A number of trusts located throughout the UK have been forced to repay money granted to them following incorrect data being provided in self-assessments of their own maternity units.

Lanyon Bowdler acts on behalf of a significant number of families affected by failings in maternity services at the Shrewsbury and Telford Hospital NHS Trust. We have seen concerning events that took place in the 1980s repeat themselves in the 2020s, showing that lessons do not seem to have been learnt. The Shrewsbury and Telford Hospital NHS Trust was one of the trusts highlighted as being forced to repay money, with the amount to be repaid by the trust totalling £953,000.

An article by The Independent states that a further six hospital trusts across the UK were also forced to repay money given, with the largest sum paid back by University Hospitals Birmingham. Following an internal review this trust repaid a total of £3 million.

NHS trusts are supposed to meet 10 safety actions to include ensuring systems are in place to review deaths, monitor women and plan staffing levels. The trusts should also report incidents to the Healthcare Safety Investigation Branch, which investigates maternity incidents within the NHS.

News of a number of trusts falsifying figures will not assist in restoring public faith in the NHS maternity services, particularly after an independent inquiry, leaked in 2019, found that more than 40 babies died due to poor care at the Shrewsbury and Telford Hospital NHS Trust and that an ongoing independent review by Donna Ockenden is now looking into 1,862 cases of possible concern.

Families affected question where the grants of the original sums of money ended up being spent, particularly with reports indicating that some trusts exhibited unsafe cultures and parents had expressed concerns over staffing levels. Criminal prosecution is being contemplated against two trusts given that deaths had occurred in their respective maternity units.

It is worth noting that out of the 115 NHS trusts that had self-declared themselves to meet the necessary safety actions, only 14 trusts failed on at least one measure. The response of NHS Resolution noted that they recognised poor governance which required further action. The chief executive of each trust is expected to sign off all declarations of individual maternity units meeting standards, so questions will be asked whether the misreporting has originated from the highest level.

This news coming to light will clearly cause worry for pregnant women in the local communities affected. Independent inquiries seem to be needed more than ever, particularly where babies and their mothers are suffering avoidable injury whilst attending these hospitals. 60% of all clinical negligence claims against the NHS between 2018 and 2019 involved maternity services.

Lanyon Bowdler has vast experience in maternal and birth injury claims and has a dedicated team dealing with enquiries and potential claims arising from the Shrewsbury and Telford Hospital NHS Trust maternity scandal. If you, or someone you know, has experienced possible negligent prenatal or postnatal care, or something has gone wrong during the labour period, please contact our team who will be able to assist with your enquiry.

Increases to Statutory Payments and Limits – April 2021

1 April: National Minimum Wage

From 1 April 2021, the National Living Wage will increase from £8.72 to £8.91 an hour.

The National Living Wage currently applies to workers aged 25 and over (excluding those in the first year of an apprenticeship). However, it will be extended to 23 and 24-year-olds from 1 April.

National Minimum Wage rates for those under the age of 23 and first year apprentices will also increase as follows:

  • Workers aged 21 to 22: £8.36 (up from £8.20)

  • Workers aged 18 to 20: £6.56 (up from £6.45)

  • Workers aged 16 to 17: £4.62 (up from £4.55)

  • Apprentices in their first year: £4.30 (up from £4.15)

Agricultural Minimum Wage in Wales

The Welsh government has yet to announce the agricultural minimum wage rates that will apply in Wales from 1 April.

4 April: Family-related payments

From 4 April, Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay, Statutory Shared Parental Pay and Statutory Parental Bereavement Pay will increase from £151.20 to £151.97 per week (or, if lower, 90% of an employee’s average weekly earnings).

6 April: Statutory Sick Pay (SSP)

From 6 April, SSP also increases from £95.85 to £96.35 per week.

6 April: Compensation limits

For dismissals with an effective date of termination on or after 6 April, the cap on the value of a week’s pay for certain statutory purposes, such as calculating statutory redundancy pay and basic awards of compensation, increases from £538.00 to £544.00.

The maximum compensatory award for unfair dismissals will increase from the higher of 52 weeks’ normal pay and £88,519.00 to the higher of 52 weeks’ normal pay and £89,493.00.

Statutory guarantee pay

Although somewhat overshadowed by entitlements under the Coronavirus Job Retention Scheme, during periods of lay-off or short-time working an employee may be entitled to a statutory guarantee payment, which is calculated by multiplying the number of normal working hours on the workless day by the guaranteed hourly rate. The maximum guarantee payment was set at £30.00 per day (subject to a maximum of five days or £150 in any three months) from 6 April 2020. There will be no increase in that this April.

A Look at Prosthetics

Prosthetic limbs have an important role to play in enabling amputees to retain independence and live rewarding lives. However, although they have been around since ancient times, their designs have, until relatively recently, been limited to those which are passive and purely cosmetic, or those which have some articulation to assist with everyday activities, such as walking or carrying, but whose functions are somewhat limited.

It has only been with recent advancements in technology and the availability of modern materials, such as carbon fibre, that greater levels of comfort and sophistication have become possible and now prosthetics are increasingly complex and tailored to meet the individual needs of the wearer, who may have different prostheses for different purposes e.g. the flexible running blades used by athletes. The development of 3D printing has further aided the speed of progress, enabling complex, lightweight limbs to be manufactured relatively cheaply. Limbs for children are now available in a variety of colours and designs, even super-hero themed, should you wish!

Although prosthetic limbs utilising socket and harness and cable systems to provide the wearer with control over the prosthetic attachment are still commonplace, development in surgical approaches to prosthetics is also adding to the choices available to amputees. Osseointegration is one of these. It provides a titanium connection point surgically fitted into the bone of a residual limb so that prosthetic attachments can be connected. This is reported to give patients a more natural feel to the movements they make when using their prosthesis.

Understandably, effectively mimicking the movements of natural limbs has long been the focus of prosthetic development, with some success. For example, battery powered ‘bionic’ prosthetic hands have been developed, which use myoelectric sensors fitted to the muscles in the residual limb to sense impulses produced through muscle contraction to control the prosthetic. The improvement in control and dexterity afforded by this type of prosthesis is impressive, with the user safely able to handle even fragile objects using the hands.

A recent Sky News story reported on new research in America, which is expanding on this idea of utilising residual muscles to control prosthetic limbs. Surgically re-activating muscle pairs that control joints, such as ankles and elbows (which are typically severed during amputation procedures), enabled patients in the study to obtain increased precision in the control of their prosthesis, in part because it afforded them a sense of where their missing limb should be, and therefore where their prosthetic limb was.

What Next?

Well, although still under development, researchers have already successfully produced prosthetics, which can be controlled by the user’s thoughts and which provide the wearer with a sense of feedback - of touch. Although it may be some time before these become mainstream, there is cause for optimism regarding the speed of development of such complex prosthetics and the range of prosthetic options available to amputees.

Sadly, it is not uncommon in the field of clinical negligence law to encounter individuals who have suffered amputations as a consequence of the negligent treatment they have received. Typically, but not exclusively, this occurs in diabetic patients, cancer patients and those who have developed sepsis. Adjusting to life with an amputation impacts upon physical and mental wellbeing, can affect relationships and ability to work and increases everyday living costs. An amputee may need home modifications to enable them to live independently, a specially-adapted vehicle and other mobility aids to assist them, and will very likely continue to need the input of medical specialists and therapists throughout their life.

At Lanyon Bowdler, we are familiar with the problems individuals face as a result of such injuries and are able to assist, not just with making a clinical negligence claim for compensation, but in helping to identify and locate support services and products which will make life a little bit easier in future. Please contact our clinical negligence team for more information.

Consultant Gynaecologist under Review for Allegedly Causing Harm to Hundreds of Female Patients

A former specialist in obstetrics and gynaecology, Dr Daniel Hay, is currently under investigation for treatment he provided at the Royal Derby Hospital and Ripley Hospital between April 2017 and June 2018, which resulted in many of his patients experiencing ‘unnecessary harm’.

Concerns Raised

Owing to concerns raised by his former colleagues in late 2018 an initial review into the treatment of 58 women was commenced. This was later widened and 382 women have now been identified as having potentially been affected.

The review encompasses major surgical treatment such as hysterectomies as well as minor surgical treatment and outpatient treatment carried out by Dr Hay within the relevant period.

Intermediary Findings of the Review

The University Hospitals of Derby and Burton NHS Foundation Trust, who are conducting the review in conjunction with NHS England, has found instances of women not counselled appropriately as to alternative non-surgical options to hysterectomies and also instances where treatment ‘fell significantly below’ standards resulting in:

  • Burns;

  • Temporary paralysis;

  • Infected wounds;

  • Uncontrolled and abnormal bleeding problems;

  • Significant abdominal pain, and

  • Severe mental health issues.

Dr Hay has since retired from the trust. The full anonymised report is due to be published at a later date, which is yet to be announced.

Other Options

Sadly where patients have uterine or ovarian cancer major gynaecological surgery such as a hysterectomy is often unavoidable, but with diagnoses, such as uterine fibroids and endometriosis, there may be other ways of treating or dealing with these problems. The treating doctor should discuss the different options available and their side effects with the patient in order to allow them to make an informed decision.

Pain and Recovery Times

If surgery is a necessity or the patient has elected to proceed down this route then it is important to note that, whilst some level of pain and discomfort is considered normal following major abdominal or pelvic surgery, this should be capable of being controlled by painkillers.

Recovery times can be six to eight weeks after an abdominal hysterectomy but are often shorter following a vaginal or laparoscopy hysterectomy. Many of Dr Hay’s patients experienced continuous pain and, in some cases, worsening symptoms beyond this time frame.

Clinical Negligence Claims

Not all complications from surgery provide grounds for a legal claim, but it is important to be aware that these may have arisen due to potential failings on the part of the doctor.

Lanyon Bowdler’s award winning clinical negligence team includes members of the Law Society’s Clinical Negligence Panel and AvMA panel members. The team has extensive experience of dealing with gynaecological cases. If you have concerns about gynaecological care you have received, our team is happy to discuss the matter with you and guide you through the process sensitively. Please contact us.

The Countryside Stewardship Scheme

Applications are now open for the Countryside Stewardship Scheme. The scheme provides financial incentives to eligible farmers, foresters, woodland owners and other land managers to look after and improve their environment.

Applications can be made for:

  • Mid Tier

  • Wildlife Offers

  • Higher Tier

  • Capital grants

  • Woodland support grants

The Countryside Stewardship Scheme is made up of a number of different elements, including Mid Tier Agreement and High Tier Agreement; woodland creation and management; options to help improve wildlife on farms, and grants for boundaries, trees and orchards, water and air quality.

Applications under the scheme are made to the Rural Payments Agency.

With Basic Payment Scheme (BPS) payments beginning to reduce this year and with BPS payments being phased out between 2021 and 2027, the first payments under the Countryside Stewardship Scheme should begin to be received at the end of 2022. The new Environmental Land Management Scheme will also be introduced.

Manuals are available to explain the scheme rules, including who can apply and what land is eligible, together with how to apply guides to help with applications.

Mid Tier and Wildlife Offers applications are open from 9 February 2021 to 30 July 2021. Countryside Stewardship Mid Tier (including Wildlife Offer) will commence on 1 January 2022. An application pack may be requested online, using Rural Payments service, until 30 June 2021.

Under the Mid Tier Scheme, rural grants and payments may be made to support activities that support the local environment. This particular route offers a wide range of management options and capital grants. An application may be made for a combination of grants that are most relevant to your particular business and local environment. Grants are available as two year grants for specific capital works, and multi-year grants where payments are made every year for five years. Most applications are competitive, meaning they will be scored and ranked. An agreement will be offered to successful applicants and, if accepted, the Countryside Stewardship Agreement will start on 1 January 2022. Payment amount depends on the options and capital items chosen and compliance with the agreement.

Grants are available as management options and capital items.

Management Options:

  • Manage land for the benefit of local wildlife

    Providing sources of nectar and pollen for insect pollinators

    Providing winter food and nesting habitats for farmland birds

  • Support local priority habitats such as:

    Species-rich grasslands;

    Wetlands, rivers, streams, ponds and ditches;

    Hedges, orchards, wood pastures and parklands

  • Manage flood risk in your local area

  • Convert and manage land to organic certification standards

  • Manage and maintain landscape features, such as maintaining traditional farm buildings and maintaining Sites of Special Scientific Interest and scheduled monuments.

Capital Grants

Capital grants are available to help manage and maintain boundaries on your land including hedgerows and dry stone walls, manage water and air pollution and improve water quality in a high water quality priority area.

Wild Pollinator and Farm Wildlife Package (WPFWP)

This package is separate from the Wildlife Offers. It helps to provide farmland wildlife with the things they need to thrive and breed successfully.

The Wildlife Offers

There are four Wildlife Offers to choose from. Choose this route for a wide range of management options focusing on providing habitats for farm wildlife. This is the quickest and easiest way to apply for the Mid Tier. It is also non-competitive, which means you just have to meet minimum eligibility requirements for the offer.

Wildlife Offers help to provide:

  • Sources of nectar and pollen for insect pollinators

  • Winter food for seed-eating birds

  • Improved habitats, particularly for farmland birds and pollinators

Receive an annual payment each year for 5 years.

Apply online for a Wildlife Offer using the Rural Payments Service until 30 July 2021.

For Higher Tier applications, initial applications are open from 9 February 2021 to 30 April 2021. The Higher Tier covers more environmentally significant sites, commons and woodlands.

Applications may be made for capital grants. There are 67 standalone capital items within three groups:

  • Boundaries, trees and orchards

  • Water quality

  • Air quality

The aim is to protect and enhance the natural environment by increasing biodiversity, boosting habitats and improving water and air quality.

The following woodland support grants are available all year:

  • Woodland creation and maintenance grant

  • Woodland management plan grant

  • Woodland tree health grant

The Higher Tier also provides grants for woodland management.

Source: GOV.UK: Wildlife Offers: Countryside Stewardship (updated 22 February 2021)

IR35 Webinar: ‘What You Need to Know about the New “Off Payroll” Rules’

In conjunction with WR Partners, Lanyon Bowdler will be providing a free webinar covering the changes to IR35 that will apply from 6 April 2021 at 11am on Thursday 11 March 2021.

To register, please click here.

About the Webinar

The webinar will last approximately 45 minutes and will cover:

  • How to determine if the off-payroll rules apply

  • How to ensure that you comply with the rules

  • The consequences of non-compliance

  • The impact of the rules on your business and its finances

  • Interactions you need to have with your contractors

  • The importance of written contracts, who they should be between and key terms

  • The need for communications during any assessment period to understand, identify and manage potential outcomes

  • Q&As

Who Should Attend?

Representatives of medium or large businesses, which engage workers through their personal services company (PSCs) (including via agencies).

Agencies who provide workers through their own PSCs to medium or large end-users.

Workers providing services through a PSC to medium or large businesses.

Meet the Speakers

Paul Brown

Tax Partner at WR Partners

Paul and his team provide high quality, commercially focused advice on a wide range of business and personal taxation matters.

The team helps to ensure clients meet their increasingly complex tax compliance obligations, while also providing a comprehensive range of tax consultancy advice, including corporate restructuring, inheritance tax and capital gains tax planning, share and business valuations, R&D and capital allowances claims, and business incorporations.

John Merry

Partner & Head of Employment at Lanyon Bowdler

John is a member of the Employment Lawyers Association and has extensive experience working for employers of all sizes across the Shropshire area.

John advises both employers and employees in connection with employment tribunal proceedings and appeals and is an experienced advocate. He works for clients from the Telford, Shrewsbury, Oswestry, Ludlow and Conwy offices.

Jenna Tarry

HR Consultant at WR Partners

Jenna has many years’ experience in HR, working with businesses across a wide range of industries including agriculture, manufacturing and hospitality.

Jenna provides support, advice, and guidance to the firm’s clients across a broad range of human resources issues.

Whistleblowers Raise Concerns about Maternity Services at Worcestershire Royal Hospital

A number of concerns raised by whistleblowers at Worcestershire Royal Hospital are causing concern about the safety of the maternity department, particularly midwifery staffing levels, risk and incident reporting and governance.

The Care Quality Commission became concerned about the hospital's maternity services after the inspection team were contacted by four whistleblowers between July and September, who reported that the service was always short-staffed and they were often moved within the department. This prompted an inspection of the hospital’s maternity services in December 2020.

Findings

Inspectors found that staffing levels were lower than planned and that these staffing shortages should have been reported on an incident reporting system, but weren’t because staff didn’t have time and assumed senior staff would do it. Midwives also said that these staffing shortages had a knock-on effect of them being frequently moved within the department.

Midwives reported to inspectors that morale was low and that they felt their concerns and views were not being considered by management. The CQC inspectors also found that not all staff were up-to-date with training and not all safety incidents were reported.

Inspectors did identify areas of good practice including collaboration between different disciplines to give mothers and babies good care and effective implementation of infection prevention and control measures.

Worcestershire Acute Hospitals NHS Trust's maternity services has now been moved down from a "good" rating to “requires improvement”, the same as the trust’s overall rating.

Improvements

The trust in charge of Worcestershire Royal Hospital was ordered by the CQC to make a number of improvements, which include engaging with staff for feedback, monitoring staffing levels and reporting and learning from all incidents and near misses.

Chief nursing officer at the trust, Vicky Morris, said, “The safety of mums to be and their babies is, and always has been, the absolute priority for everyone working in our maternity service. Managing maternity services through the Covid-19 pandemic has been extremely challenging for all our staff and we thank them for their commitment during what has been a very difficult period.”

She went on to note that the trust had already been making changes over the staffing issues before the inspection.

"We have run a very successful recruitment campaign for midwives and once the next round of recruitment is completed next week we should have filled all our vacancies and recruited an additional 10 midwives," she said.

COVID-19 has understandably had a profound impact on the NHS, stretching its staff in ways never seen before, but it is important that we do not accept falling standards in the care of pregnant mothers and delivery of babies and we at Lanyon Bowdler echo the words of CQC’s Chief Inspector of Hospitals, Professor Ted Baker, that “it is crucial that women get the safe and personalised birth experience they are entitled to and that midwifery staff feel supported and valued in order to achieve this. The service must ensure that any risks are identified, and safety incidents are correctly shared and reported to reduce their impact.”

Lanyon Bowdler’s award winning clinical negligence team includes members of the Law Society’s Clinical Negligence Panel and AvMA panel members. The team has extensive experience of dealing with birth injury cases. If you have concerns about the maternity care you have received, our team are happy to discuss the matter with you and guide you through the process sensitively. Please contact us.

Force Majeure Clauses and COVID-19

The impact of COVID-19 has meant that many events, services and goods cannot be performed, delivered or produced due to government guidelines and legislation. Given this, a vital question to be answered is whether a force majeure clause can exclude a party from performing its obligations on time or at all, due to COVID-19.

What Is a Force Majeure Clause?

A force majeure clause is a clause that suspends, and may bring to an end, the performance of obligations under a contract where a party is prevented from performing these obligations due to events outside of its control. For example, the clause will set out a list of circumstances in which a party is excused from performing its obligations and the contractual consequences that will follow such a clause being triggered.

Although these clauses are typically standard clauses, they vary considerably from contract to contract, depending on what the parties agreed. Hence, when it comes to deciphering whether or not such a clause is triggered by COVID-19, it will depend on the particular terms set out in the contract.

The key question for many individuals, as well as companies, who are trying to understand their contractual position, is whether or not COVID-19 is a force majeure event.

Is COVID-19 a Force Majeure Event?

The definition of a force majeure event within a contract tends to be either a list of specific events or a broad range of general criteria. Within law, “force majeure” has no specific definition so whether or not COVID-19 satisfies the definition will be contract dependant.

Given the current unprecedented times that we are living in, it seems likely that courts would be generous in their rulings in relation to whether or not COVID-19 falls within the definition, especially when it can be said that parties have encountered genuine difficulties in performing their contractual obligations. However, such parties will still need to show that their non-performance, or late performance, was truly outside of their control and could not have been prevented or mitigated.

It is important to recognise that even if a force majeure clause is found to have been triggered by COVID-19, this does not necessarily mean that the party/parties trying to rely on the clause will be protected entirely from liability for failing to perform or delay in performance.

Contract Specific Factors

It is common within force majeure clauses for particular words to be used to specify when the clause will be triggered. The words used within the contract are of the utmost importance when it comes to deciding whether or not the clause is triggered.

For example, if the clause states that performance is “delayed”, this is not as onerous as if it said “prevented”. When it comes to proving that the clause has been triggered, if “prevented” is used then it will be much harder to prove as this essentially means “unable to perform”. It would not be enough that the contractual obligations are more difficult to perform, more expensive or less profitable. Whereas, if “delayed” is used, it is not necessary to show that the obligations have been prevented from being performed, just that complying as quickly as required under the contract is substantially more difficult.

Overall, if the force majeure clause that you are aiming to rely on uses wording referring to “delayed” performance, you are more likely to be able to rely on this to postpone your obligations or even terminate your agreement than you are if the clause states “prevented” performance.

Conclusions

Firstly, it is important to consider whether COVID-19 would be covered by the definition of force majeure within the contract in question. Even if a force majeure clause does not list “pandemic” as a triggering event, it is likely to be caught within the general scope of “events beyond your control”, unless the contract was entered into after the breakout in Wuhan became known worldwide. If this is the case, then the specific contract would need further consideration.

Secondly, if the clause is found to cover COVID-19, then it needs to be decided whether the parties will be released of their obligations and the agreement terminated or whether their obligations will just be postponed. It is more common for the parties’ obligations to be postponed.

Finally, as each contract is drafted on its own terms, it is important that you understand your rights and obligations before you act. If you wish to discuss a contract to which you are a party to determine the extent of your obligations, please contact our corporate and commercial department.

An Employer’s Defence to Harassment Claims

For the purposes of the Equality Act 2010 anything done by an employee in the course of their employment is treated as having also been done by the employer. This means that an employer can be liable for harassment when an employee harasses another employee and this is the case whether or not the harassment is done with the employer's knowledge or approval.

There is a defence available to an employer if it can show that it had taken all reasonable steps to prevent the harassment. Such steps are often found to include relevant training for employees and also having suitable policies in place. When considering such a defence put forward by an employer, an employment tribunal will consider the steps that have been taken by the employer and whether further reasonable steps were required.

In a recent appeal heard in the Employment Appeal Tribunal (EAT) on this subject, the EAT agreed with an employment tribunal (who had heard the case first) that the training undertaken by the employer was not sufficient to show that all reasonable steps had been taken and therefore the employer could not avoid liability for its employee’s actions.

The tribunal had found that the anti-harassment, bullying, equality and diversity training which had been delivered to the perpetrator of race harassment and other relevant employees (including two managers who failed to report matters to HR), was several years before the events in question and was clearly stale and, further, it did not accept that the employer had taken all reasonable steps to avoid discrimination in the workplace because a reasonable step would have been to refresh that training. Agreeing, the EAT said that the employment tribunal was entitled to make this conclusion.

What Does This Mean for Employers?

This case shows that employers who do not undertake meaningful and effective anti-harassment and bullying and equal opportunities training on a regular basis are at risk of being found liable for the actions of their employees.

It is also important that employers have in place well drafted anti-harassment and bullying and equal opportunities policies. If these policies are already in place, they should be reviewed to ensure they are up to date and that all members of staff are aware of them.

There are other important benefits to taking these steps than ultimately defending claims. Appropriate policies and training helps promote an inclusive workforce and avoid actions that can give rise to grievances and/or claims; and if there is nevertheless harassment or otherwise unlawful discrimination, they will make it more likely that concerns are properly reported and addressed.

Employers who would like more information on the above-mentioned policies and/or training for staff, should contact a member of Lanyon Bowdler’s employment team.

Planning Enforcement: Beware of the PCN

Local planning authorities have various powers to compel a landowner to provide information about land in their areas. This includes the power to serve Planning Contravention Notices (PCNs), the purpose of which is to obtain information about alleged unauthorised development. PCNs, although discretionary, are an important step in planning enforcement investigations.

PCNs are not actual enforcement notices, which require the person who receives them to stop or remove unauthorised development. Therefore, there might be a temptation for landowners or other recipients of PCNs, and even local planning authorities, to be somewhat relaxed about responding to them or following them up. However, failing to respond properly to a PCN attracts criminal liability and the case of Russnak-Johnston v Reading Magistrates Court [2021] EWHC (Admin) 112, which was decided on 26 January 2021, demonstrates why stakeholders overlook the importance of PCNs at their peril.

The purpose of a PCN is to find out information about an allegation of breach of planning control, which could be an unauthorised change of use or building or other operations without planning permission or a failure to comply with a condition that is on a planning permission. A PCN can require the landowner or occupier to provide a wide range of information including what is going on the land, when the allegedly unauthorised activity started, who is carrying out the unauthorised activity and what interest they have in the land. As wide as this power is, case law is clear that a PCN is not to be used as a “fishing expedition” in that the authority must have some evidence beforehand of unauthorised development and the information sought in the PCN must be aimed towards that development. The recipient of a notice has 21 days to respond.

What Will Be the Consequence If the Landowner Fails to Respond to the PCN?

Failure to respond to a PCN or to intentionally or recklessly provide false information in response is a criminal offence as is failure to comply with any subsequent enforcement notice. While the PCN-related offence carries a limited fine and is a ‘summary offence’, which means it can only be tried in the magistrates’ court, the offence related to the enforcement notice is more serious. Failure to comply with an enforcement notice carries an unlimited fine (as in there is no limit on the fine that can be imposed on the defendant) and can be tried in either the magistrates’ or Crown Court.

Therefore local planning authorities focus quite naturally on the enforcement notice. If somebody blatantly lies in response to a PCN, it is more common for authorities to use that fact to attack their credibility in an enforcement appeal than to go through the trouble of prosecuting the person. Also because it is a summary offence, the authority has six months, from the commission of the offence, to prosecute. However, it should be noted that failure to comply with a PCN (like an enforcement notice) is what is known as a ‘continuing offence’ which means that there is an ongoing obligation to provide the information requested by the PCN, even after the end of the initial 21-day deadline.

What Happened in the Case of Russnak?

The case of Russnak centred around a site, that had permission for the keeping of horses for recreational use, which the local planning authority suspected was actually being used for residential purposes and as a commercial livery. The authority served two PCNs. The first one related to residential use and the second to commercial livery uses. In the second PCN, the claimant was asked to provide leases, agreements and other documents relating to the commercial use which she did not.

An enforcement notice was served and the documents requested were produced during the appeal. The enforcement notice was withdrawn but the local planning authority decided to prosecute the claimant for failing to provide information and providing false information in response to the PCNs. The claimant applied for a judicial review and quashing of the magistrates’ decision to proceed with the prosecution.

The first point the claimant took related to the definition of ‘information’. In my experience, a PCN usually consists of a list of questions and it is more unusual to see requests for documents as in Russnak. The High Court did not accept the claimant’s argument that asking for documents fell outside the definition of ‘information’ in the legislation and that therefore the authority had exceeded its powers. The court decided that that the word "information" clearly included information in the form of the document.

The next point from the claimant was that the six-month time limit to prosecute the offences had long expired by the time the local planning authority started the prosecution. The court interpreted the legislation to mean that the offence of failing to answer a question on the PCN was a continuing offence. This meant that the six-month time limit started afresh on every day after the initial 21-day period that the information was not provided. However, the offence of providing false information was committed once and for all when the false information was provided and could not a continuing offence.

The case is a good reminder to take PCNs seriously, even though they are not actual enforcement notices. Failing to respond to them could have a number of consequences, which include affecting future compensation rights, which are outside the scope of this note, and affecting the landowner’s credibility in any enforcement appeal. Finally, as the case says, a recipient of a notice cannot relax once the six-month period from the day that they are supposed to submit their response expires. The authority’s six-month time limit starts afresh every day that they fail to respond to the PCN and as the case demonstrates, in the right circumstances, authorities are willing to prosecute for the offence of failing to respond properly to PCNs.

Latest News

08 May 2016

A Mother Talks About the Challenges Faced Due to Cerebral Palsy Following a Birth Injury

Her daughter from Shropshire was diagnosed with Cerebral Palsy following a birth injury, Lanyon Bowdler are working w...

Read More