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Failings in Maternity Care Confirmed by Donna Ockenden Report

This year we have united in pride and admiration for our NHS but today’s report reminds us that we must also accept that in the past not everyone has experienced the standard of care from the NHS that they deserve.

Today’s report from Donna Ockenden highlights shocking examples of failings in maternity care provided at the Shrewsbury and Telford Hospital NHS Trust between 2000 and 2019. The report identifies disappointing and deeply worrying themes, which have jeopardised patient safety and caused harm to babies and mothers for years.

Women at their most vulnerable were not listened to and were denied empathy, appropriate care and the opportunity to deliver their babies safely. A full list of the failings can be found within the report linked here, but the most harrowing findings include:

  • The failure to appropriately risk assess pregnancies. There was little or no discussion with the mothers about options for delivery and the risks involved. Where a mother was to give birth was decided for her, without full disclosure of the risks and options available.

  • There were a significant number of cases where midwives and obstetricians did not demonstrate an appropriate level of competence in particular in relation to knowing when to escalate, the interpretation of foetal wellbeing traces and the use of oxytocin.

  • There is disturbing evidence of a number of repeated attempts at vaginal delivery with forceps, sometimes with excessive force causing significant injury and death.

  • The Trust perceived their low caesarean rates as “good care” when, in reality, this created a dangerous culture where women had little freedom to express any choice on mode of delivery. In some individual cases the report recognises that earlier recourse to a caesarean delivery would have avoided death and injury.

What happens next?

As we at Lanyon Bowdler fight for justice for those families who have been affected, we must also look to the future. This is our local trust. Our staff, friends and family all give birth here and so this is an incredibly personal cause to our team.

Alongside specific recommendations for Shrewsbury and Telford Hospital NHS Trust, the report has identified the following seven essential actions, which must be implemented immediately, across nationwide maternity services:

  • Enhance and strengthen safety by increasing partnerships between trusts and local networks.

  • Ensure women and families are heard.

  • Staff who work together must train together.

  • There must be robust pathways in place for managing women with complex pregnancies.

  • Staff must ensure that women undergo a risk assessment at each contact throughout the pregnancy pathway.

  • All maternity services must appoint a dedicated lead midwife and lead obstetrician both with demonstrated expertise to focus on and champion best practice in foetal monitoring.

  • All trusts must ensure women have ready access to accurate information to enable their informed choice of intended place of birth and mode of birth, including maternal choice for caesarean delivery.

The second part of Ms Ockenden’s report will follow in 2021, however it is expected that the Trust acts upon her recommendations immediately. Improvements must be made to ensure the maternity services at our local trust are safe.

We have profound sympathy for our clients and the families that have suffered indescribable loss. If you would like to discuss a potential claim, please contact us on 0800 294 5915 or via our website for a free consultation.

The Father Christmas Risk Assessment

I regularly represent HGV drivers after they have been injured, while out driving or more often when collecting or delivering loads. Christmas is normally the busiest time of the year for HGV drivers and it struck me recently that the role of a HGV driver is not that far removed from the role of Father Christmas, whose main job is delivering goods to children.

I often have to advise HGV drivers regarding the duties owed to them by their employers under the various regulations, so for a bit of Christmas fun I thought I would look at the risks faced by Father Christmas at work. To make things more straightforward I have assumed that Father Christmas is employed.

His employer should, first of all, carry out a risk assessment of all the tasks he does, which would undoubtedly identify the risk of injury due to the amount of manual handling he would have to do, so the Manual Handling Operations Regulations would need to be considered. The employer clearly cannot avoid Father Christmas having to lift anything, so they would have to take steps to reduce the risk of injury to the lowest level possible. Providing him with smaller sacks to carry the presents in would be a good start, so that he is not lifting too much weight at any one time.

Health and Safety Impact on Sleigh Riding

The sleigh would have to be considered in light of the Provision and Use of Work Equipment Regulations, which require it to be constructed or adapted as to be suitable for the purpose for which it is used or provided. When selecting it, the employer has to have regard to the working conditions and to the risks to the health and safety of Father Christmas while using it. I suspect that to comply with the regulations a fair few modifications to his current sleigh will be required.

The employer would certainly have to consider the Work at Height Regulations and would have great difficulty in complying with them, as access to buildings via chimneys is clearly not safe. Should it be a white Christmas, or an icy one, Father Christmas would certainly be at risk of slipping and falling, so the Workplace (Health, Safety and Welfare) Regulations would also have to be considered.

Travelling at high speeds around the world in very cold conditions would also bring the Personal Protective Equipment at Work Regulations into play, and I doubt that a red jacket and black wellies would be considered appropriate PPE.

If Father Christmas is to be able to deliver all of the presents on time he will not have time to have much of a break, so his employer would be well advised to ask him to opt out of the Working Time Regulations.

Who knew that the job of Father Christmas was so hazardous?

The Importance of Music in Rehabilitation

For most of us music plays a part in our daily lives; whether listening to the radio during our daily commute, playing an instrument as a hobby or even in our profession. If someone had said ‘music therapy’ to me prior to working at Lanyon Bowdler, I would have probably associated it with listening to different songs depending on a person’s mood. There is, however, far more to it than one might think.

What Is Music Therapy?

The BAMT (British Association for Music Therapy) describes music therapy as ‘an established psychological clinical intervention, which is delivered by… music therapists to help people whose lives have been affected by injury, illness or disability through supporting their psychological, emotional, cognitive, physical, communicative and social needs.’

When asked about the type of therapies a person may require if they have difficulties with their mobility, speech or even their cognition, music is usually unlikely to be one of the common answers. Traditionally, people conclude that the individual may require physiotherapy, or speech and language therapy, and it is unlikely someone would consider music as being able to assist these problems. However, music can be as versatile in how it is used as a therapy tool, as it is diverse in genres. Music therapy can be utilised as a complimentary therapy, standalone therapy or as a precursor to enable fuller engagement in other types of therapies.

How Does Music Therapy Work?

Music therapy can assist both children and adults with an acquired brain injury (ABI), traumatic brain injury (TBI) or other cognitive difficulties. Brain injuries change lives and inevitably have a large impact on the individual and those caring for them. Music therapy can be used to assist individuals suffering with a wide array of difficulties stemming from a brain injury, such as; aphasia, limb movements, gait and balance issues, speech and language, personality changes and much more through varying stages of rehabilitation.

There are many sub-types of music therapies, which enable sessions to target the areas which most impact the client’s daily life. The sessions can be tailored to focus on emotional, social, functional or neuro-rehabilitation goals. They can help develop confidence, awareness, independence and communication skills, which are so important in rehabilitation.

We were extremely fortunate to receive a training session recently from Chroma, a national company providing bespoke music rehabilitation to clients across the country. If you would like more detailed information surrounding music therapy, or their services, please click here.

How Are We Involved?

Our Court of Protection department regularly works alongside a wide range of therapy providers such as music therapists, who provide ad hoc services or are members of multidisciplinary teams for our professional deputyship clients.

As an all-service law firm our professional deputies in our Court of Protection department work closely with our Personal Injury and Clinical Negligence departments to ensure our clients are able to access services and therapies seamlessly throughout their claims, upon settlement and thereafter, as we recognise the importance of rehabilitation. If you would like more information in regards to our professional deputies and how we may be able to help you please call 01743 280280 and ask to speak to a member of our Court of Protection department.

Parental Responsibility - Is it Worth Poking the Sleeping Bear?

Parental Responsibility (PR), like your appendix, is something many people don’t think about or even realise they have until it causes problems. PR is a legal concept that confers upon certain people, usually the parents of a child, the right to be involved in key landmark decisions in that child’s life, such as their schooling, religious upbringing, their right to leave the country, medical care etc.

In the vast majority of families parents exercise these rights together every day without thinking about it but occasions do arise when there are disagreements about how PR should be exercised and what is best for a child and, if an agreement can’t be reached with the assistance of mediation or lawyers, the Court can decide what is in the child’s best interests.

I have noticed I have been receiving an increased number of queries about PR removal in recent weeks.

Sometimes my client says it is because the other parent has shown no interest in the child for years and they don’t want to feel the other parent has a hold over them by still having PR. I sympathise entirely but have to advise my client that, if they wish to apply for the other parent’s PR to be removed, they will need to apply to the Court and the other parent will be notified and be allowed to participate in the case. A controlling or vindictive parent may see this as the perfect opportunity to ask for contact with the child without having any serious intention of actually maintaining that relationship, and may use the proceedings as a means of antagonising the person making the application. I always suggest my client weighs up that risk against their reasons for applying to remove PR, as they know the other person much better than I do and how they might react.

If the parents were married when the child was born then it has also been suggested by the Courts that they do not have the right to remove one parent’s PR and, in that case, the Court might have to make an order simply limiting how one parent exercises their PR. This would still require the involvement of the other parent in the Court proceedings, with the same considerations as set out above.

The only question the Court can ask itself is “Is this in the child’s best interests?” and whilst there are cases where there is an obvious reason for removal / limitation of PR, such as where the other parent has perpetrated awful acts of violence or abuse against the child or family members and it is not in the child’s interests for the other parent to be able to make decisions about the child, these cases will be the exception rather than the rule.

It will always be specific to the facts and background of the case but I generally suggest people think very carefully about whether they want to open this particular can of worms or keep a tight lid on it until the child is 18, and the issue falls away naturally.

In other words: Is it worth poking the sleeping bear?!

Child Arrangements Over The Christmas Period – How Does This Work With The Christmas Bubble?

Christmas is a special time of year for families, especially children. This year will be unlike any other we have experienced before due to the unfortunate Coronavirus pandemic that has placed the country under national restrictions.

On 24 November the Government announced that there will be special provisions for making a Christmas bubble with friends and family during the festive period. In brief between the 23 and 27 December households will be able to form an exclusive ‘Christmas bubble’ composed of people from no more than three households. The guidance states that you can only be in one Christmas bubble and you cannot change your bubble, so how does this work for children of separated parents?

The President of the Family Law Division and Head of Family Justice provided guidance in March 2020, at the beginning of the pandemic, stating “where parents do not live in the same household, children under 18 can be moved between their parents’ homes”. This guidance was issued to ensure any arrangements made between parents, whether that be by way of a Court Order or between the parents themselves, is upheld despite the restrictions imposed as a result of the pandemic, to ensure children maintain contact with both parents.

When it comes to the Christmas period 2020, the Government has followed this guidance provided by the Head of the Family Justice and have stated that “children (under 18) whose parents do not live together may be part of both parents’ Christmas bubbles, if their parents choose to form separate bubbles. Nobody else should be in two bubbles.”

This means that where you have a child with another parent from a separate household, your child can freely move between yours and the other parent’s household and be in both of each person’s bubble. This does not mean you have to include the other parent’s household as part of your Christmas bubble. This will assist families in not feeling restricted, and allow them to share the festive period with other friends and family as per the general guidance, if they so wish. It does not prohibit you including the child’s other parent as part of your bubbles, but allows for flexibility. This guidance has put the child at the heart of the festivities, allowing them to enjoy their time with all parents without feeling they need to choose which bubble to be a part of.

If you are concerned about how to manage child arrangements this Christmas please contact our specialist family law team.

Distribution Agreements

Distribution agreements are the framework for commercial relationships between suppliers and distributors. They are very common within the commercial world and it is imperative that they are drafted to cover all eventualities. With Brexit looming, it is a vital time for companies and individuals entering into such agreements to reassess these agreements and consider the potential amendments that might be necessary to protect themselves come 31 December 2020.

Although the implications of Brexit on distribution agreements are currently uncertain and are dependent on negotiations currently taking place, there are a number of predicted changes that are worth considering in advance. Advanced discussions will help to better prepare you or your company for the future and will put you in a better position for negotiating new contracts.

There are a number of key issues to consider, these include:

  • Definitions within agreements currently in place – is the UK defined as an EU state or as part of Europe? If so, amendments will be necessary to reflect the changes to the European structure.
  • Are there any competition issues that are currently regulated under your agreement? Currently, EU legislation and regulations have been adopted into UK law. However, once the UK leaves the EU, it is likely that this legislation will diverge over time. Competition law is likely to diverge as it will be regulated in the UK by the Secretary of State and the Competition and Markets Authority, rather than EU bodies.
  • As a distributor or a supplier, are you responsible for obtaining certification for any products? There is some concern that UK ‘Notified Bodies’ (such as the British Standards Institution) and authorised representatives will no longer be accepted by the EU. This would mean that, any goods imported into the EU would need to be certified by EUbased institutions in order for the goods to be accepted.
  • Tariffs on goods leaving the UK to go to EU member states – as a member of the EU, no tariffs are required when goods are exported to other EU member states. However, once the UK is no longer a member of the EU, tariffs will be applicable to exported UK goods. These tariffs are often of low value but will certainly make the goods less competitive. Specific tariffs are implemented by the World Trade Organization.
  • Tariffs on goods entering the UK from EU member states – if you import goods from Europe or you are a multinational company, you are likely to face new tariffs when you import goods into the UK. The Government has published expected rates of such tariffs but at this stage, these are subject to change.

Supply chains are going to be imperative moving forward. Ensuring that you are able to get hold of the goods or materials, at a relatively low cost is likely to become more of a challenge given the tariffs coming into force. It might be worth reviewing your supply chain and/or finding alternative options to prevent you from paying excessive import tariffs.

At this moment, we also cannot ignore COVID-19 implications. For example, if you are too heavily reliant on one distributor or supplier and their country of origin goes into lockdown, would you be able to work around this or would you be facing complications that you were not prepared for?

Ultimately, this area remains in flux. Now is the time to consider all of your contracts and relationships to ensure you are adequately prepared.

If you would like any advice or assistance in relation to a distribution agreement to which you are a party or you are soon to be a party, please contact our Commercial Department to arrange a call to discuss your options.

Furlough Claims - Time Limits

You might be aware of the new (quite short) timescales for lodging claims with HMRC for payments under the Coronavirus Job Retention Scheme (“CJRS”), which are as follows:

Claim for furlough days in

Claim must be submitted by

November 2020

14 December 2020

December 2020

14 January 2021

January 2021

15 February 2021

February 2021

15 March 2021

March 2021

14 April 2021

HMRC may accept a claim made after a relevant deadline if there is a “reasonable excuse for failing to make a claim in time despite taking reasonable care to do so” – provided that the claim is then made without delay after the excuse no longer applies.

Yesterday, the government amended its guidance to provide the following examples of what may amount to a reasonable excuse for missing a deadline:

  • your partner or another close relative died shortly before the claim deadline
  • you had an unexpected stay in hospital that prevented you from dealing with your claim
  • you had a serious or life-threatening illness, including coronavirus related illnesses, which prevented you from making your claim (and no one else could claim for you)
  • a period of self-isolation prevented you from making your claim (and no one else could make the claim for you)
  • your computer or software failed just before or while you were preparing your online claim
  • service issues with HMRC online services prevented you from making your claim
  • a fire, flood or theft prevented you from making your claim
  • postal delays that you could not have predicted prevented you from making your claim
  • delays related to a disability you have prevented you from making your claim
  • a HMRC error prevented you from making your claim

The Anti-malarial With a Dark Side

Anti-malarial medication is a widely accepted and distributed form of preventing malaria, and is often prescribed to travellers and adventurers here in the UK for those visiting high malaria-risk zones.

Malaria itself, a potentially fatal disease, transmitted through mosquitos and parasites, or malaria vectors, can cause multi-organ failure and death if untreated. The World Health Organisation (WHO) estimates that 93% of all malaria cases originate within the continent of Africa, with other high-risk zones including East Asia and the Pacific Islands accounting for the rest. In 2018, there were around 228,000,000 cases worldwide and around 450,000 deaths caused by malaria.

What Are the Most Commonly Prescribed Anti-malarial Drugs?

Here in the UK, the most commonly prescribed anti-malarial drugs are known as Doxycycline, Mefloquine, Chloroquine and Proguanil. Doxycycline is an antibiotic drug, commonly used to cure chest infections and sexually transmitted infections (STI) but is also used for malaria prevention. It is seen as the safest anti-malarial for use and is widely prescribed to people travelling into malaria zones. Whilst there are some side effects, the majority of these are short term and serious side effects only occur in around 1 in 1,000 people.

Mefloquine, commonly known as Larium, is the second most commonly prescribed anti-malarial drug to those traveling to high-risk areas. Larium itself has been used globally by countries including the UK, the USA, Canada, Denmark and France, and for many years was seen as the inexpensive preventative measure to prescribe to those travelling overseas, including military personnel.

What Are the Side Effects of Larium?

Larium works by interfering with the growth of parasites within the red blood cells in our body. On the face of it, Larium is a highly effective drug used to prevent malaria. However in recent years more and more people have reported severe psychiatric side effects, lasting many years after the drug had been taken. During the period of April 2007 and March 2015, 17,368 UK armed forces personnel had been prescribed Larium whilst deployed on operations overseas, with no prior risk assessment being taken. Side effects of Larium can be severe and mentally debilitating, and can include the following:

  • Depression or anxiety
  • Suicidal thoughts
  • Self-endangering behaviour
  • Psychosis
  • Paranoia
  • Panic attacks
  • Unusual behaviour
  • Feeling of confusion
  • Hallucinations
  • Aggression or agitation
  • Restlessness
  • Unusual mood swings
  • Disturbance of attention

Sleeping issues are the most common side effect, affecting 1 in 10 users, with many reporting insomnia and hallucinations during sleep. Prior to all prescriptions of Larium, a GP should conduct a thorough check of all medical records to ensure there are no pre-existing medical conditions, including a mental health check-up, to ensure suitability of the drug. Since the drug’s manufacture in 1989, there have been thousands of prescriptions without these checks being done, leading to neurological disorders developing in many, particularly in those associated with the armed forces.

The risks of using Larium are well documented, and numerous studies have been undertaken to evaluate the side-effects, yet the UK armed forces continued the use of this drug and still does to this day. Many soldiers, sailors and airmen have suffered with anger issues, anxiety and post-traumatic stress disorders (PTSD) following their return from operational theatres, all of which may have been exasperated by the prescription of Larium. Neurological and psychological disorders can have a lasting impact on someone and may cause constant struggles in family and work life, which can lead a person to suicide if not properly managed.

If possible, Larium should be avoided if an alternative is available and if you have been prescribed it in the past and are experiencing symptoms listed above, you should speak with your GP for a check-up.

The New CJRS Treasury Direction

On 13 November, HM Treasury published its fifth Direction in relation to the furlough scheme. Treasury Directions form the legal framework for the scheme.

The new Direction:

  • formally extends the CJRS from 1 November 2020 until 31 March 2021;
  • sets out the detail of how the CJRS will operate between 1 November 2020 and 31 January 2021 (a further Direction covering February and March 2021 to be published in due course); and
  • withdraws the Coronavirus Job Retention Bonus.

The rules cover a wide range of issues including: eligibility; furlough agreements; claim periods; reference salaries; calculating usual hours of work; permitted activities during furlough; business succession (including TUPE); PAYE scheme reorganisations; and time limits for making claims.

Some key points are as follows:

  • Claims may not be made for any day that an employee is serving notice between 1 December 2020 and 31 January 2021. The Direction does not distinguish between notice of dismissal and notice of resignation.
  • It is now a condition of making a claim that the employer accepts that HMRC will publish information about CJRS claims on-line. This includes the name of the employer and a “reasonable indication” of the amount claimed. An exception may be made for employers who can show that publication would expose their workforce to “serious risk of violence or intimidation”.
  • Furlough agreements must be in place before the start of the relevant claim period (but may be varied during the claim period).

A Day in the Life of Me

Having worked as a personal injury lawyer for nearly 12 months prior to the COVID-19 crisis, the guidance from the government to work from home where possible was daunting for me. I previously had the option to work remotely, but only utilised it if something urgent cropped up, so the idea of fully working from home was a whole new world to me. I have my own caseload to monitor, but also work within a team and am reliant on my team members for direction with tasks on their files. I must admit I was worried that I would not have enough to fill my days whilst working from home. Boy, was I wrong!

Every day is different in my role, so when I was asked to write about a day in my life, I obviously needed to concentrate on work duties but, if you have read my previous blog, you will be aware that my “day” duties begin much earlier than below, and also go on a lot longer than close of business.

So, a day in the (work from home) life of Laura Moulton post-COVID-19 starts very differently from a day in the (office) life.

9am: My work day begins.

Coffee ready – computer on. I begin by checking emails as most lawyers will, as these are the current source of communication for all aspects of our jobs. I consult my calendar to ensure that I am aware of what the day holds. We are still continuing with training, albeit virtually, and so there may be a webinar later in the day. I may also have a department/team meeting for which I need to prepare.

I then concentrate on my tasks for the day. These vary and can include opening new matters and preparing the initial client care paperwork, preparing funding paperwork and also any telephone notes not yet typed up. Any tasks relating to my supervisors’ files can involve requesting medical records, drafting witness statements, arranging conferences with counsel and experts, setting up zoom examinations for clients/experts, producing court bundles (often at short notice given the court’s backlog). There are so many other tasks that could be part of my working day, let’s just say with guidance from my supervisors, if I have capacity I will assist!

10:30am: A call comes in from a colleague in my team, she needs help with finding something on a file (it is likely that I will recall it coming in from my time as a secretary on that particular file and will have filed it!). If time allows we also use that call to catch up – one of the downsides to working from home is not seeing and speaking to those you would normally see daily.

11am: An email comes in from a colleague, “are you free to help”. Everyone who knows me, knows I will not say no. These types of emails will often be requests to help with computer programmes (I am a super user for our document management system), or simple queries such as how do I access a disc. If the request for help is from my team, it is most likely a request to assist with something such as updating a list of documents, requesting medical records, preparing letters of instruction to experts.

12noon: On a Friday, I meet with my supervisors via zoom. This is an opportunity for me to discuss any potential new enquiries I have met/spoken to since our last meeting. We discuss any possible issues that may arise with the particular enquiry, whether the injuries are of a value necessary for a personal injury claim, and also whether the value is of a higher value and perhaps should be passed to a colleague.

12-1pm: 1pm: Time for fuel! Having my husband at home has benefits although my waistline does not appreciate the sausage sandwiches, which are so easily accessible. It does ensure though that I take a break from the screen and think about something other than work for a little while. To be honest we tend to just sit and watch Bargain Hunt and guess whether the red or the blues will make a profit! Simple distraction!

4.30pm: A new client enquiry comes in. Within our department we take new enquiries on a triage system – I am third in that system. There are days where my other team members are either off or unavailable and so I will receive the call or email to speak with a new enquiry. We take brief details to be passed to our head of department, who allocates it to the appropriate person. Allocation takes place based on the experience of the lawyer and also the geographical location of the enquiry.

5pm: Our end of business is 5.15pm, so I tend to spend the last 15 minutes, looking over my timesheet for the day to ensure anything missed is time-recorded and also looking at my task list to ensure everything urgent has been dealt with and anything that needs carrying over is reset. I also check my calendar for the next day to ensure I am ready for what is in store tomorrow.

5.15pm: My “night” duties begin!

Collaborative Law – Q&A

2020 has been a difficult year. With the additional strains and stresses that Christmas will bring, we divorce lawyers anticipate that the New Year will be a busy time.

However, the good news is that there is a way to reach agreement during a divorce without having to resort to expensive court disputes, as I will explain in this blog.

Why Is the Start of the Year so Busy for Divorce Lawyers?

The New Year is often a time for new resolutions and new starts. After putting up with difficult situations or perhaps finding that a stressful Christmas is the straw that breaks the camel’s back, people may decide that it is a good time to make changes for the better to their lives, including contacting family lawyers.

What Is Collaborative Law?

It is a method of resolving issues arising from relationship breakdown focusing on finding solutions in a collaborative rather than court-based process. The aim is for a couple to focus on their most important goals, such as ongoing care and co-parenting of their children.

A series of face-to-face meetings promotes dialogue and provides a tailor-made solution for all aspects of their separation. It does not have to be solely for divorcing couples, it can be used in cohabitation breakdowns and also where couples are looking at starting a relationship together.

What Are the Advantages?

The parties commit not to go to court and are therefore in charge of the process and in control of the outcome. They make the final decision.

Unlike mediation the parties are supported in the face-to-face meetings by their lawyers, who can provide direct and immediate legal advice on any technical queries. As issues are discussed in the room there is complete transparency, which builds trust and enables the parties to see how their process is evolving.

If technical issues or disputes are encountered, experts known as “neutrals” can be brought in to assist the parties. This includes financial advisors, such as actuaries and business accountants, as well as family therapists if issues over children crop up.

The costs tend to be about half that of going to court to resolve financial issues or children matters because the meetings are tailor-made for the parties, who agree the agenda on each occasion. In addition to this, the couple is offered privacy, which provides a sense of achievement knowing that they have worked together to resolve matters.

How Long Have You Been a Family Lawyer?

24 years. I qualified in 1996 and have specialised exclusively in family work since then. I have seen many changes, including the introduction of pension sharing orders in the year 2000 and The Civil Partnership Act in 2004. I trained as a Collaborative Lawyer in 2010 and I am an active member of the “Shropshire Collaborative Lawyers” Group. Visit here for more details. Contact us for more information.

CJRS – Updated Guidance

As promised, the government updated its guidance on the furlough scheme on 10 November. The latest guidance for employers is here and that for employees is here.

Amongst other things, the updated guidance confirms that from 1 November, the scheme is open for employees who were employed on 30 October, as well as employees who were made redundant or stopped working on or after 23 September if they are then re-employed (provided that they were subject to a PAYE Real Time Information (RTI) submission to HMRC between 20 March and 30 October, or 23 September as the case may be, notifying a payment of earnings for them); and there is no longer a maximum number of employees for whom an employer can claim. (Up to 31 October, subject to limited exceptions, in any claim period employers could not claim for a greater number of employees than the maximum number for whom they had claimed in any claim period up to 30 June.)

As is well known, from 1 November employers can claim 80% of an employee’s usual pay for hours not worked, up to a maximum of £2,500 per month.

The guidance states that employees returning from maternity leave need to give 8 weeks' notice to end maternity leave early in order to be furloughed under the scheme. The guidance does not deal with the situation where employees who are not subject to a statutory obligation to provide such eight weeks’ notice (because the employer did not confirm the date upon which maternity leave would otherwise expire in writing) or otherwise where the employee and employer agree to shorten the eight week period. Therefore, for clarity, we await the updated Treasury direction, which will set out the formal rules of the extended scheme, and/or further updated guidance.

The employer must confirm in writing to the employee that they have been furloughed, and keep a written record for 5 years. Employers should also ensure that any furlough arrangements are introduced lawfully and otherwise effectively. We have updated our precedent furlough documents to take account of the extended scheme.

Employers can retrospectively implement furlough with effect from 1 November 2020, as long as the agreement to retrospectively claim furlough occurs on or before this Friday 13 November.

There seems to be a mistake in the guidance concerning TUPE. It states that employees who transfer under TUPE must have "been employed by their prior employer on or before 30 October 2020 and transferred from them to their new employer on or before 1 September 2020" whereas it should say: "been employed by their prior employer on or before 30 October 2020 and transferred from them to their new employer on or after 1 September 2020". See this Twitter exchange.

Notably, whilst the updated guidance confirms that, for the time being, employers can still claim under the scheme for furloughed employees, who are under notice of dismissal, it states that the government is reviewing whether this should continue, and the approach will change for claim periods starting on or after 1 December, with further guidance to be published in late November.

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