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Can I Still Move Home During the Covid-19 Outbreak

Last week the government issued guidance to buyers, sellers, estate agents, solicitors, surveyors and new property developers regarding moving home whilst the UK is in lockdown to fight the coronavirus pandemic. We aim to answer any questions you may have in this regard within this blog.

Will my transaction proceed?

Whilst there is no need to immediately pull out of transactions, we all must ensure we are following guidance to stay at home and away from others at all times, including the specific measures for those who are presenting symptoms, self-isolating or shielding. Prioritising the health of individuals and the public must be the priority.

If you are moving into a vacant property, or if indeed you are purchasing a buy to let property which is vacant or already has tenants in situ, then you can continue with that transaction as planned. In these circumstances we, at Lanyon Bowdler, recommend a simultaneous (same day) exchange and completion. If you are moving into a vacant property you must ensure that when carrying out removals yourself, you comply with the social distancing guidance during the moving process.

Where the property is currently occupied and no exchange has taken place, we encourage parties to delay exchange until such time as the stay-at-home measures against coronavirus (COVID-19) will no longer be in place to minimise the risks.

If exchange has already taken place and you are contractually bound to complete, we encourage all parties within the chain to do all they can to amicably agree an alternative date to move, for a time in the future when it is likely that stay-at-home measures against coronavirus (COVID-19) will no longer be in place. This may be a fixed date in the future, or it may be more appropriate for an on notice completion, with a longstop and/or Covid-19 special condition provision. This can be done by a variation of the contract but it is important that a new contract is not entered into.

Will my mortgage offer be valid?

It is important to remember when agreeing a new completion date that you ensure your mortgage offer will remain valid at the point of the revised completion date. Last week UK Finance confirmed, that in order to support customers who have already exchanged contracts for property purchases with set dates for completion, all mortgage lenders are working to find ways to enable an extension of their mortgage offer for up to three months.

We recommend you check with your lender as to whether this is automatic or whether you will be required to apply for such an extension.

It is also worth considering that should your financial circumstances change between exchange and completion i.e. you lose your job, your lender would be entitled to withdraw the mortgage offer. Finally, you should also be aware that property prices could fluctuate during Covid-19 and again this may affect your mortgage offer. UK Finance have confirmed banks will work with their customers should this happen.

Follow the guidance

If moving is unavoidable for contractual reasons and the parties are unable to reach an agreement to delay, people must follow advice on staying away from others to minimise the spread of the virus. In line with government’s guidelines, anyone with symptoms, self-isolating or shielding from the virus, should follow medical advice which will mean not moving house for the time being, if at all possible.

In the new emergency enforcement powers given to the police, which came into force last week, there is an exemption for critical home moves, in the event that a new date is unable to be agreed.

If you are looking to put your property on the market for sale this may be more challenging than usual during this period. There should be no visitors to your home.

You can speak to estate agents over the phone and they will be able to give you general advice about the local property market and handle certain matters remotely, but they will not be able to start actively marketing your home in the usual manner.

If you are thinking about selling, you can use this time to start gathering together all of the information you will need to provide to potential purchasers, and indeed we at Lanyon Bowdler are accepting instructions from clients in this regard.

If your property is already on the market, you can continue to advertise it as being for sale but you should not allow people in to view your property. We are aware that some estate agents have arranged for sellers to carry out viewings with prospective buyers by video apps. We do not recommend, however, that you exchange until such time as the stay-at-home restrictions have been lifted so that you can view the property in person.

If you have any questions or if you would like to instruct us to act on your behalf please do not hesitate to get in touch with us.

National Minimum Wage

National Minimum Wage rates are to increase from 1 April.

The National Living Wage (for over 25-year-olds) will increase 6.2% from £8.21 to £8.72.

For other age groups and apprentices the rates will increase as follows:

  • 21-24-year-olds: 6.5% from £7.70 to £8.20
  • 18-20-year-olds: 4.9% from £6.15 to £6.45
  • Under-18s: 4.6% from £4.35 to £4.55
  • Apprentices: 6.4% increase from £3.90 to £4.15

Agricultural Minimum Wage (Wales)

The Agricultural Wages (Wales) Order 2020 was made on 27 March 2020 and will come into force on 1 April 2020. This Order replaces the Agricultural Wages (Wales) Order 2019.

It makes provision about the minimum rates of remuneration and other terms and conditions of employment for agricultural workers in Wales.

The Order increases the minimum pay levels for all categories and grades of agricultural workers in Wales.

For the full Order please click here.

Home Is Where the Heart Is

Back in February in the office there was a sense of anticipation in the air on Valentine’s Day and it was nothing to do with what the postman might bring. A fair few of us were hoping our phones might ring with news that we had won a prize raffle for a house worth over half a million. Sadly, our hopes were dashed when news broke that the prize had been won by a 23 year old from Wolverhampton. Congratulations to this lucky lady and we wish you the best for your future there.

Isn’t it lovely to get momentarily carried away with thoughts of our dream property, particularly in the current climate? For some it is a place in the country, others a spot by the sea.

But for many of our clients in Court of Protection their dream home is simply something that caters for their needs and allows them to live comfortably, securely and with independence.

Thinking about our own homes for a moment, it is easy to see how accessing them could become difficult or even a danger if we suddenly suffered a life-changing accident. At a time when our world has already been turned upside down, our home no longer representing a sanctuary is a sizable additional challenge to overcome.

Furthermore, as our property is often our most valuable asset it also represents a large area of vulnerability for our clients. Having someone independent in charge of making decisions relating to property can avoid questions about whether transactions are really being carried out in the best interests of the incapacitated person.

How Can We Help?

Our team of professional deputies recognises these difficulties and can make decisions on behalf of clients about: buying and selling property, finding suitable rental accommodation, authorising purpose-built housing to be made and/or arranging suitable adaptations for existing homes.

As someone who recently purchased a ‘doer-upper’ myself, I am aware of the significant costs involved in achieving a comfortable home. A deputy will be aware that any specific adaptations to a property may not be matched by an equivalent increase in the value of the property and therefore a good deal of consideration will be given to whether it is appropriate for the client to remain in their own home.

A deputy must always bear in mind that any improvements to a client’s property are to be done in their best interests and they will need to obtain a number of estimates from suppliers to ensure this is achieved. There may also be a need to defer to other professionals such as an architect or surveyor if the adaptations are sizeable.

As well as the bigger decisions, a deputy is responsible for many aspects of running and maintaining a home for our clients. This includes ensuring that the various safety checks are completed, that service contracts are in place to cover heating, water and electrical supplies and arranging the necessary buildings and contents insurance cover. They also manage the utility bills and are responsible for ensuring that the correct level of council tax is paid.

A deputy has a duty to ensure that a property is kept secure and in a reasonable state of repair. One of the professional deputy standards recommends that a deputy should regularly “review the condition of the property and ensure it is adequately maintained.” Therefore, our Court of Protection team works with our facilities manager and ensures that there is access to reliable tradesmen and contractors for repairs and gardening.

We know that a home represents a great deal more than simply the bricks and mortar it is made from. We work closely with our clients and their families when it comes to matters of the home and understand both the practical and emotional aspects. If you would like to contact us regarding any matter relating to mental capacity, please ask to speak to a member of the Court of Protection team.

Working and Learning Remotely

While applying for training contracts you’re often asked what new challenges will law firms face in the future. For the most part, in recent times, this would have incited a discussion concerning Brexit and the United Kingdom’s departure from the European Union. Less likely to be considered are the ramifications of a pandemic on the legal sector and the country as a whole.

As a trainee with Lanyon Bowdler, I had just started my second seat with the personal injury department when restrictions in the United Kingdom were yet to be put in place. I, like many of the other trainees, had only just begun to settle into my new role within the department.

At an early stage, Lanyon Bowdler started taking steps to actively manage the ever evolving situation, both in terms of meeting the needs of its clients and of its employees. I happened to be in the position where I was both an employee and a client of the firm; having only just recently completed on my property purchase.

A client’s perspective

From a client perspective, this included the residential property department liaising with me throughout the process, updating me as to any issues that might arise and generally assisting with my concerns. Whether this was regarding the effect this situation might have on exchange of contracts and completion, or just the normal everyday concerns.

A trainee’s perspective

Within my own department, the thing I noticed most, was despite the fact each individual had their own matters and concerns everyone took time to ensure that others could meet the changing demands of the situation. The firm as a whole has also come together with individuals taking on roles and assisting wherever they can, even if this is just by lending someone a spare laptop that can be used to work remotely or stopping to listen to another colleague’s concerns. My team has taken every step to ensure that my experience within the seat and my training contract will not be hampered and that I am still able to carry out my role effectively; albeit in a very different way.

The legal sector will take time as a whole to adapt to this situation, with everyone working remotely (including the courts). We may see changes to the way we would witness a Will, with e-signatures and video-witnessing being contemplated; although, there is no confirmation that this would be accepted so far. In personal injury, we have already seen a dramatic shift to remote access to the courts and greater cooperation between defendant and claimant lawyers who understand the need to maintain continuity and mitigate the effects of these unprecedented circumstances.

These are difficult times for everyone, the way we go about our lives has changed drastically with little time to adjust. The ability of the people of Lanyon Bowdler to maintain a degree of normality and to continue to perform exceptionally at times like this, is how I know I’ve chosen the right firm to undertake my training contract with.

If you are interested in applying for a training contract with Lanyon Bowdler, please visit the training contracts page for more information.

Coronavirus: The Conflict between Social Distancing and Signing your Will

These are uncertain and unprecedented times. COVID-19 is dominating the news and we, as a population, have to adapt to a new way of life, and one that includes such things as social distancing.

As many of us are practising social distancing, you may find yourself at home, away from your workplace and with more time on your hands. Many will be using this time to catch up with general life-admin, and of course considering their future. The Daily Telegraph has reported that levels of requests for New Wills are up by 30 per cent since Coronavirus reached the UK. At Lanyon Bowdler, we can most certainly believe this statistic, as we continue to receive an influx of instructions for new Wills on a daily basis.

We are following government guidelines regarding the COVID-19 outbreak and we acknowledge the need to stay safe at this time. Whilst it may be difficult at the moment for you to leave your home to come in and see us, you can easily get in touch with us by phone, email or by video conferencing (which allows us to take your instructions without the need for face-to-face meetings). We will be more than happy to help you and your family with any concerns you may have during these uncertain times.

How Can I Have my Signature Witnessed when Social Distancing?

The issue crops up when it comes time to sign your Will. After we have received your instructions we can send you your Will for signing at home (to avoid you having to leave the house and attend the office). To be validly executed, a Will must be signed by the testator (you) in the presence of two independent witnesses, who must also sign the Will in your presence.

As you can see, this presents an issue given the guidance as regards social distancing.

Asking your spouse or a family member in your household to witness the Will is not the solution. Your witnesses must not be a beneficiary of the Will. If one of them were to sign as your witnesses, then they would lose any gift or inheritance left to them in the Will.

To comply with the current guidelines regarding social distancing, you should not have friends or neighbours over at your house and you should avoid coming into contact with others. How then, can a Will be validly signed and witnessed?

Some options could include signing outside with neighbours looking on over the garden fence, or on your doorstep with witnesses at the other end of the driveway. It is extremely important, however, in all cases, to keep a safe distance from others and to comply with the latest government guidance at all times, for example by witnessing at a distance of at least two metres and with everyone using their own pens.

In these times of social distancing, the above options present their own problems, in particular with regards to those in a vulnerable category, or those who may be self-isolating. But what about witnessing a Will through a window?

The Case of Casson v Dade

You may be surprised to learn that such a situation was, in fact, addressed in a very old piece of case law: the case of Casson v Dade of 1781.

In Casson Miss Honora Jenkins went to her solicitor’s office to execute her Will. She signed the Will in the office, in the presence of her witnesses. After she signed the Will, however, Miss Jenkins felt faint and was taken to sit in her carriage outside of the office. The witnesses to the Will stayed in the solicitor’s office and signed the Will, at which time the carriage window was in a clear line of sight with the office window. Miss Jenkins looked through the window and therefore could see the witnesses signing the Will. The case of Casson suggests therefore that it may be sufficient to have two witnesses who are in line of sight though not in the same room, i.e. through a window or closed patio door. This could be the solution needed when it comes to validly executing your Will.

Advice Regarding the Validity of Your Will

COVID-19 is changing the world we live in on a daily basis. In these unprecedented and unpredictable times, it is natural for us to be thinking about the future and planning for the unknown. As part of this, we just need to ensure that any documents are valid and correct.

At Lanyon Bowdler we are continuing to provide legal services to you and we will remain available to discuss your matter. If you want to talk about your Wills or any other related issues, then please get in touch with one of our experienced private client solicitors.

The Coronavirus Act 2020

As the police redeploy and only arrest where absolutely necessary and the courts slow down, I find myself in the unusual position of having 10 minutes spare to compose a blog…

The current state of play is that all ongoing jury trials will continue until conclusion. Locally, no new jury trials will commence and any trial listed between now and 27 April will be vacated and relisted later in the year. This is sure to cause significant problems to a criminal justice system that is already listing trials that are over two years old.

At present, Crown Courts are only covering urgent work which may include for example a bail application or to extend custody time limits.

Likewise, Magistrates’ Courts are only covering urgent work such as overnight custody cases and people produced from prison.

Finally, the police are being diverted to coronavirus related patrols, for example dispersing barbeques or house parties as I have read in the local press!

It is now a criminal offence to leave the place where you are living (unless homeless) without a reasonable excuse.

'Reasonable excuses' are listed and include assisting vulnerable people, taking daily exercise, purchasing food necessities or attending court!

As designated ‘key workers’, myself and my colleagues are still on call 24/7, as and when we are needed.

The Coronavirus Act 2020

The Coronavirus Act 2020 is now out and sees a number of temporary changes in the criminal justice system.

In the Act, for mental health related cases, only one practitioner is now required to make a recommendation instead of two where impractical or would involve undesirable delay (Schedule 8).

New screening procedures and powers of enforcement are brought in for those suspected of having coronavirus or symptoms which could result in a fine, not exceeding level 3 if somebody fails to comply without reasonable excuse (Schedule 21).

Under Schedule 22, people can be fined (a £60 fine, which is reduced to £30 if paid within 14 days and an additional fine of £120 for a second offence) if they fail without reasonable excuse to comply with a prohibition relating to events, gatherings and premises.

Finally, Schedules 23-26 inclusive, introduce and fast track the courts’ powers to utilise live audio and video links for people to take part in proceedings amending existing legislation.

What is the Difference Between a Planning Lawyer and a Planning Consultant?

Our planning team prides itself on its ability to work alongside clients and their agents, architects or planning consultants, to achieve the best possible outcome when negotiating planning permissions and conditions, but one question we get asked a lot is ‘what is the difference between a planning lawyer and a planning consultant?’.

We are always happy to clarify the key distinction and to explain that there is an overlap between the respective skill sets of different professionals working in the same field of planning and development.

Our planning team is able to assist with:

  • Advice on the planning application process;
  • Assistance with negotiating the terms of planning permissions and conditions;
  • Guidance and legal advice regarding any appeals or enforcement action initiated against your business;
  • Any development agreements required as part of the planning process and associated topics, such as the Community Infrastructure Levy and Section 106 Agreements

We are more often called in to advise on the legal processes surrounding planning projects, which might include more non-contentious elements, such as development agreements made under Section 106 of the Town & Country Planning Act or Section 278 of the Highways Act.

We also regularly advise clients on a myriad of other planning processes, such as the variation of planning conditions using Section 73 of the Act, submitting and advising upon the evidence required for Lawful Development Certificates, submitting appeals against the refusal of planning permission and advising on challenges in the High Court, whether that is against the decision of the council or a planning inspector.

We work alongside planning consultants all the time, but the vast majority of our clients consult us about planning issues where an application has already been lodged and they either wish to make representations, or to obtain legal advice on specific aspects of the process.

Clients are businesses, developers, applicants for planning permission or other third parties that wish to make representations. Very often we are brought into a project by planning consultants where legal issues have arisen, and we also have excellent links with the barristers’ chambers that specialise in planning law.

In short, we know what we do best, but will always tackle the thorny and controversial issues which the modern planning system throws up. If you need legal advice regarding a planning issue please contact our expert planning team.

Legal Directory Recommendations

Lanyon Bowdler's planning team was established in 2015 and has since secured numerous accolades including the following comments from leading legal directories:

The 2020 edition of Chambers UK states: ‘David Brammer is a highly experienced lawyer with a wealth of planning knowledge. Market sources regard him as ‘highly competent and very experienced.’
David is also recognised in the 2020 edition of The Legal 500 which states he ‘is clearly a leader in his field. He can scythe through complex factual and legal detail to get straight to the pertinent issues. He is extremely good with clients and ensures that their case is always properly understood and articulated. A delight to work with.’

In 2018 and 2019, David was named in an independent survey as one of the top 25 planning lawyers in England.

Homeowners, Tenants and Landlords during the Covid-19 Outbreak

The emergence of Covid-19 as a global pandemic has caused significant uncertainty which has permeated almost every aspect of society. Whilst people are, of course, concerned about their health and the health of those around them, there is also considerable concern over jobs and, by association, mortgage and rent payments. As the scale of the outbreak became clear, there was increasing pressure on the government to take steps to alleviate some of these concerns. This led to two key announcements within the last week, details of which are set out below.

Mortgage Payment Holidays

The first announcement specifically relating to the housing situation came on 17 March, when Rishi Sunak announced that three month mortgage payment holidays will be made available to any homeowner who self-certifies that their income has been directly or indirectly adversely affected by the current outbreak. This move, which means that those who are struggling to keep up their repayments can pause such repayments over a three month period, was welcomed by homeowners. Whilst the finer details of this policy remain unclear, it is nevertheless hoped that it will go some way to minimising housing worries during this concerning period.

Protection for Renters

Whilst the above announcement was largely welcomed, it did prompt the question of whether a similar arrangement would be made available to renters, with tenants’ unions claiming that the current crisis could lead to tens of thousands of households being made homeless as a result of an inability to pay rent. These concerns were therefore addressed in a subsequent policy announcement on 18 March, when Sunak announced measures to prevent tenants being evicted from their accommodation during the current outbreak. Specifically, for a three month period, landlords will not be able to commence eviction proceedings, giving tenants peace of mind that they will have a roof over their heads in the coming months. Following this three month period, landlords and tenants will be expected to negotiate an affordable repayment package.

What about landlords?

Landlords can benefit from the recent mortgage payment holidays in the same way as other homeowners, with the additional protection that they will receive the benefit of the same in the event that their tenants are unable to pay their rent. In theory, this means that landlords are unlikely to lose any homes they own during this period, particularly if rental income is supplemental to an alternative income source. Yet there appears to be little by way of protection for those landlords whose income is solely rental based. In the event of tenants being unable to pay their rent, landlords may struggle to make ends meet, with their usual recourse of commencing eviction proceedings temporarily unavailable. Whilst both parties are expected to negotiate an affordable repayment package, this could prove impossible if the tenant does not have the necessary funds to pay for the missed rent. Similarly, commencing eviction proceedings will be fraught with difficulty if tenants do not have sufficient funds. As a result, the impact of the current outbreak could lead to missed rent of several months for landlords which they may ultimately be unable to recoup. For landlords relying solely on rental income, the coming months have the potential to be extremely challenging for them.

Whilst the above measures may go some way to alleviate the pressure caused by the current outbreak, it remains likely that there will be varying degrees of financial difficulty endured by many. If you have any concerns regarding your ability to pay the mortgage or rent, or if you have any queries regarding your rights as a tenant or landlord, we recommend seeking legal advice or seeking the advice of your nearest Citizens Advice Bureau branch.

Statutory Sick Pay and Coronavirus

In light of the coronavirus outbreak, the Chancellor made a series of announcements in relation to statutory sick pay (“SSP”) in his budget address on 11 March, namely that:-

(i) Entitlement to SSP is to start from the first day of absence, rather than only after three waiting days.

(ii) Businesses with fewer than 250 employees will be able to reclaim from the State SSP paid to any employee for up to 14 days in connection with coronavirus.

(iii) Employees who cannot work because they have self-isolated in accordance with government guidance, and who otherwise qualify for it, are to be entitled to SSP – notwithstanding that they might not actually be unfit to work.

However, the first two changes have not yet been implemented and despite the government and Acas guidance suggesting otherwise, the third has only been partially implemented.

So what is the current position?

SSP Start Date

In guidance published for employees on 20 March, the government has stated that it is in the course of making the necessary legislative changes so that employees will be entitled to SSP from the first day of absence, and that once the legislation has been passed it will apply retrospectively from 13 March.

The government guidance for employees published on 20 March relating to SSP is available here.

Reclaiming SSP

In guidance for employers published on 20 March, the government announced that it is to pass legislation that will allow “small and medium-sized businesses” to reclaim up to two weeks’ SSP paid per eligible employee who has been off work because of Covid-19.

The guidance goes on to state that employers with fewer than 250 employees as of 28 February 2020 will be eligible.

However, despite the absence of express reference to other qualifying criteria, the reference to small and medium-sized businesses suggests that it might be the case for limited companies that only those not classed as large companies in accordance with rules relating to the filing of accounts will be eligible.

To be no larger than a medium-sized company for those purposes, a limited company and, if applicable, its parent company, must meet at least two of the following conditions:

  • annual turnover must be no more than £36 million
  • the balance sheet total must be no more than £18 million
  • the average number of employees must be no more than 250 (note, up to 250 employees, not “fewer than”, as per the expected criterion relating to reclaiming SSP).

It remains to be seen if it will be as simple as that any employer which had fewer than 250 employees as of 28 February will be able to reclaim SSP, regardless, in the case of companies, of the size of any parent company.

The guidance states that employers will be able to reclaim expenditure for any employee who has claimed SSP “according to the new eligibility criteria” as a result of Covid-19: in respect of which see the below section on Eligibility.

The guidance states that employers should maintain records of staff absences and payments of SSP, but that employees will not need to provide a GP fit note; and if evidence is required by an employer (which will be in the employer’s discretion), those with symptoms of coronavirus can get an isolation note from NHS 111 online and those who live with someone that has symptoms can get a note from the NHS website.

The eligible period for the scheme is not to commence until the day after regulations on the extension of SSP to those staying at home comes into force (again, see below re Eligibility).

An actual repayment mechanism has yet to be developed. The guidance states that the government will work with employers over the coming months to set this up as soon as possible.

The guidance for employers published for employers on 20 March in relation to reclaiming SSP is available here.

Eligibility

Although government guidance, including that published for employees only on 20 March, and Acas guidance has stated that employees are already entitled to SPP if they are self-isolating for 14 days in accordance with guidance to do so because a person in their household has displayed symptoms of the virus, the current legislation does not reflect this.

The legislation relating to SSP was amended with effect from 13 March to state that a person is deemed incapable of work (and so, if they otherwise qualify, are entitled to SSP) where they are isolating themselves in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales effective on 12 March. This covers employees who self-isolate for seven days because they have displayed symptoms (but who are not necessarily unfit to work), but not employees who are in “household isolation”. This is because the guidance on household isolation did not come into effect until 16 March.

However, it is apparent from the guidance published for employers on 20 March that further legislation is on the way to address this.

Coronavirus: The Business Impact

For employers, the outbreak of the Covid-19 coronavirus raises points relating to employment law, health and safety and data protection. Below, we address some common questions that employers are likely to have.

The Coronavirus Job Retention Scheme

The government announced on 20 March 2020 that under its Coronavirus Job Retention Scheme, it will meet 80% of the “salary” of furloughed (i.e. laid-off) employees, initially for up to 3 months, back dated to 1 April – click here for more details.

When can an employer expect an employee to self-isolate and what does it involve?

The current advice of the government is that people should self-isolate for 7 days if they have either:

  • a high temperature or
  • a new continuous cough

Further, anybody who lives with somebody who is displaying the above symptoms should stay at home for 14 days from when that person first became symptomatic. After 14 days, anyone in the home who does not have symptoms can return to their normal routine. But, if anyone else in the home gets symptoms, they should stay at home for 7 days from the day their symptoms start.

Any person who suffers symptoms can return to their normal routine after 7 days if they feel better and no longer have a high temperature. If they still have a cough after 7 days, but their temperature is normal, they do not need to continue staying at home. A cough can last for several weeks after the infection has gone.

Should any other member of a household develop coronavirus symptoms within the 14 day household-isolation period, the isolation period for the household does not need to be extended, but the person with the new symptoms has to stay at home for 7 days (as per the above). At the end of the 14 day period, any family member who has not become unwell can leave household isolation.

The government is advising those who are at increased risk of severe illness from coronavirus to be particularly stringent in following social distancing measures, including that they should work at home “wherever possible”. For further details in this regard and relating to social distancing for everyone else, click here.

(The previous advice relating to travellers to the UK from certain destinations self-isolating for 14 days even if they are not displaying any symptoms was withdrawn on 12 March.)

Can an employer take steps to prevent an employee who has refused to self-isolate from attending work?

It is an employer's duty to protect the health, safety and welfare of their employees and other people who might be affected by their business. Employers must do whatever is reasonably practicable to achieve this. If an employer knowingly allows any individual to attend work within 7 days of displaying a high temperature or new continuous cough, it may be in breach of that duty.

Suspension may be an option, but employers should consider whether they have a right to suspend in these circumstances. In the absence of an express contractual right to suspend, legal advice should be sought.

Must employees who self-isolate be paid?

Obviously, employees who are actually unfit to work will be entitled to sick pay in accordance with the terms of their contract or otherwise, if they qualify, to statutory sick pay (“SSP”).

Employees who are fit to do so and who can practicably work from home can be required to (if newly introduced, or expanded, subject to the employer ensuring that the health and safety implications have been considered and that the necessary infrastructure is in place – see below) and, of course, will be entitled to be paid accordingly.

The Chancellor stated in his budget announcement on 11 March 2020 that employees who cannot work because they have self-isolated in accordance with government guidance, and who otherwise qualify for it, are to be entitled to SSP – notwithstanding that they might not actually be unfit to work. This is also the position stated in subsequently published government guidance and Acas guidance – including, expressly, that this extends to employees who are self-isolating because a member of their household has displayed symptoms of the virus (see above). However, the legislation relating to SSP as amended with effect from 13 March states that a person is deemed incapable of work (and so, if they otherwise qualify, are entitled to SSP) where they are isolating themselves in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales effective on 12 March. Therefore, whilst this will cover employees who are self-isolating for 7 days because they have displayed symptoms, pending any further amendment to the legislation, it will not cover employees who are not displaying symptoms themselves, but who are self-isolating because a member of their household has displayed symptoms. This is because the guidance on household isolation did not come into effect until 16 March.

Employers might wish to bear in mind, however, including because the wording of the Chancellor’s announcement and subsequent published guidance, that many employees might have an expectation that they will receive at least SSP if they self-isolate in accordance with government guidance from time to time and, accordingly, that failing to pay at least the equivalent of SSP in such circumstances (to employees who would be entitled to SSP if they were unfit to work) might result in grievances or otherwise disputes.

The Chancellor also stated in his budget announcement that entitlement to SSP is to arise from the first day of absence, rather than only after 3 waiting days. However, this was not implemented immediately, and the necessary legislative amendments are still awaited. The government has now announced that when the legislation is passed, it will apply retrospectively from 13 March.

Another measure announced in the budget was that businesses with fewer than 250 employees will be able to reclaim from the State SSP paid to any employee for up to 14 days in connection with coronavirus. Legislation necessary to give effect to this has yet to be implemented, but more details have been published: click here for details.

Whether employees who self-isolate and cannot work from home but who are not actually unfit to work are entitled to contractual sick pay will depend on the wording of their contracts. For example, if a contract stipulates that sick pay (over and above SSP) will be paid if an employee is “incapacitated due to sickness”, the employee will not be entitled to payment; whereas if a contract states that sick pay will be paid if the employee is absent “for health reasons”, it would be arguable that the employee will be so entitled.

It is a feature of certain published guidance, including by Acas, that it is good practice for employers to continue to pay employees who self-isolate in full, regardless of whether there is a contractual obligation to do so, including in order to encourage compliance with government guidance to self-isolate. However, in the absence of a contractual obligation, whether to pay in full is a commercial decision for the employer; and the cost of paying employees who are absent might impact on businesses severely – notwithstanding the limited scope for smaller employers to reclaim some SSP.

Accordingly, some employers might prefer to not pay some or all employees who self-isolate any more than they have to.

Employers might want to treat each employee’s case on its merits and otherwise keep their approach under review. For example, some employers might be prepared to exercise discretion to pay employees who aren’t working due to recommended self-isolation after displaying symptoms (but who remain fit to work), or perhaps who are in “family isolation”, in full for the time being (or at least to pay those in family isolation the equivalent of SSP), but alter their approach at a later date in the light of the ongoing financial position of the business, and/or in the event of individuals self-isolating on a second (or further subsequent) occasion.

Where an employee who is fit to work takes it upon themselves to self-isolate and not work other than in accordance with the government guidance, certainly if there are no considerations regarding unlawful discrimination (see below), they may be subject to a disciplinary action for misconduct in terms of their refusal to follow a reasonable management instruction and their unauthorised absence; and if the absence is unauthorised they will not be entitled to any pay – whether in the form of SSP or otherwise.

Home working

If there is already an established requirement to work from home where appropriate or where instructed to do so, then there is unlikely to be an issue in applying that obligation in an effort to contain the spread of Covid-19.

If not, imposing home working might be argued to constitute a variation of the contract requiring employee consent, and if faced with such an argument legal advice should be sought. However, where an employee is faced with either being on SSP or nil pay as an alternative, it is logical that they will usually be willing to consent to working from home as a way of preserving pay.

Where home working is being newly introduced, or expanded, the employer should ensure that the health and safety implications have been considered and that the necessary infrastructure is in place.

Employers are responsible for an employee's welfare, health and safety, "so far as is reasonably practicable". They must conduct a suitable and sufficient risk assessment of all the work activities carried out by their employees, including homeworkers, to identify hazards and assess the degree of risk. Employers will need to consider these obligations in the context of any employees who work from home to decide what measures they need to put in place. For HSE guidance in this regard click here. If you would like a referral to a health and safety adviser, please contact us.

What if an employee refuses to attend work because they are in a high risk group?

As stated above, Public Health England particularly recommend social distancing measures for older people and vulnerable adults in the UK: click here for details.

The Acas guidance encourages employers to be sympathetic to any genuine concerns staff may have and try to resolve them to protect the health and safety of the employee. For example, if possible, the employer might offer flexible working, or allow the employee to take holiday or unpaid leave – or alternatively, the contract might be suspended for a period (see below).

It might constitute an unlawful failure to make reasonable adjustments for an employer to require vulnerable adults with disabilities to continue attending work, or unlawful disability discrimination to dismiss such employees who refuse to attend because they wish to self-isolate. Similarly, such omissions or acts in respect of older employees might constitute unlawful age discrimination.

One possible solution is to agree with such employees that their contracts will be temporarily suspended for the duration of the period of isolation. They will not receive any remuneration during the period of suspension and, unlike in respect of a period of simple unpaid leave, they will not continue to accrue annual leave entitlement (which should be attractive to employers) – but as and when they return to work, their continuity of employment will not have been broken (albeit that the period away from work would not count towards length of service). Legal advice should be sought in respect of individual cases.

What if an employee is otherwise afraid to attend work?

As stated above, the Acas guidance encourages employers to be sympathetic to any genuine concerns staff may have and try to resolve them to protect the health and safety of the employee, for example, by offering flexible working were possible, or allowing the employee to take holiday or unpaid leave – or, alternatively employment contract might be suspended for a period (see above). There will no doubt be counter-balancing considerations in this context, however, such as the impact on the morale of other employees who soldier on and attend work without raising any issues despite the concerns that many people will have about the virus – although suspension of contracts might be considered unlikely to be viewed as a contentious option by colleagues.

An employee with severe anxiety may find their condition is exacerbated by travelling or being in public places due to the increased risk of contracting Covid-19. If their anxiety prevents them from attending work in these circumstances, it is possible that they may be regarded as on sick leave and therefore entitled to SSP or contractual sick pay.

Where an employee suffers from severe anxiety, this could amount to a disability under the Equality Act, so it would be prudent to obtain legal advice in respect of individual cases, particularly if there are reasonable adjustments that could be made but the employer is considering not making them.

Can employees be required to use their holiday entitlement?

Employees who are unfit to work can elect to exercise holiday entitlement if they wish, but they cannot be lawfully required to take holiday – at least to the extent this forms part of their statutory minimum holiday entitlement.

Otherwise, employers can require employees – including those who are self-isolating but not unfit to work – to take holiday if their contracts of employment include an express power in this regard. However, whilst we retain this power for employers in contracts that we prepare as a matter of course, we rarely see it in other contracts.

If there is no such contractual power, the Working Time Regulations 1998 allow employers to direct employees who are not unfit to work to take holiday that is part of their statutory 5.6 week entitlement – but subject to a requirement that notice is given of at least twice the duration of the holiday to be taken.

What if a workplace temporarily shuts down or there is otherwise a need to lay-off, or reduce the working hours, of at least some staff?

Of course, population distancing strategies have extended to the closure of schools and premises in the leisure and entertainment sector; and an increasing number of other businesses, including in the retail sector and automotive manufacturing, have closed their doors due to the impact of staff absences, supply-chain issues and/or fall in customer demand.

In many circumstances, where there is work to be done that can practicably be done from home, home-working will present at least a partial solution in the event of work place closure.

Employers might require employees to take holiday to mitigate the impact of suspended or reduced operations (see above re requiring employees to use holiday entitlement) – but this can only go so far, including due to such considerations as the extent of already exhausted or otherwise pre-booked holiday.

The government announced on 20 March 2020 that under its Coronavirus Job Retention Scheme, it will meet 80% of the “salary” of furloughed (i.e. laid-off) employees, initially for up to 3 months, back dated to 1 April – click here for more details.

However, an employer can only lawfully insist on an employee working no, or reduced, hours and reduce their remuneration accordingly if the contract of employment provides for this. Further, it appears that the Coronavirus Job Retention Scheme will provide no support for businesses or employees to whom short-time working arrangements are applied (although further details of the scheme are awaited).

Lay-off and short-time working provisions are more common for blue collar workers than white collar. However, we recommend that employers include such provisions in contracts for all employees in order to help protect their business in the event of any material disruption, whether of the type described above or, say, fire, flood, IT failure (consequent upon a viral attack or otherwise), fuel shortage (such as affected many businesses during blockades of refineries some years ago) or, for rural businesses or their customers or supply chains, diseases affecting livestock or crops.

For employers who don’t currently have lay-off or short-time working provisions, it is usually possible to impose them on employees where there is an economic imperative, but advice should be sought before doing so with a view to avoiding liability for breach of contract, unfair dismissal or, where 20 or more employees are affected at one establishment, breaches of collective consultation rules. It should be noted, however, that where the obligation to consult collectively applies, notice of implementation of lay-off or short-time working usually cannot lawfully be imposed within 45 days of the commencement of consultation if 100 or more employees are to be affected at one establishment, or 30 days if fewer are to be affected, and the State must be notified of the proposal on form HR1. Of course, due to the level of pay funded by the Job Retention Scheme, many employees who are not subject to contractual lay-off provisions will consent to being laid off – but any such arrangements should still be implemented with care, and consideration should be given to the approach to be taken in respect of such employees who are asked to agree to being furloughed but refuse.

Employers who withdraw work from an employee for any day are obliged to pay a limited amount of statutory guarantee pay (“SGP”) to employees with more than one month’s service. Although the payments afforded by the Coronavirus Job Retention Scheme will usually very much exceed SGP, bear in mind that it appears that employees who are on short-time working will not be subject that scheme, and so rules relating to SGP will remain relevant.

SGP is £29 per day (increasing to £30 from 6 April 2020) for up to 5 days in any 3 month period. The period of entitlement reduces pro-rata for employees who normally work fewer than 5 days a week. It should further be noted that qualifying employees can issue a notice to take statutory redundancy pay if they are paid less than half pay for 4 consecutive weeks, or for 6 weeks out of any 13 – subject to the employer’s ability to issue a counter-notice in certain circumstances.

What if redundancies need to be made?

Hopefully, the Coronavirus Job Retention Scheme will have its intended impact in minimising job losses. This includes that as the Scheme will be back dated to 1 March 2020, it presents an opportunity for employers who have already issued notices of dismissal, but which have not yet expired, to offer to withdraw them; or perhaps for employers to offer to re-engage employees whose contracts have already been terminated. In that event, we would encourage that advice be sought, including regarding the terms that are to apply to the employment going forward, not least in relation to lay-off and short-time working, the effect of any termination on continuity of service, and the potential for those not to be offered continuing employment to argue unfairness.

To the extent that redundancies are to be made, where it is proposed that 20 or more employees are to be dismissed, or have their contract changed fundamentally, at one establishment within a 90 day period, other than in exceptional circumstances, there will be an obligation to consult collectively on numerous specific issues. Further, the issuing of notices of dismissal will be precluded within 45 days of the commencement of consultation if 100 or more employees are to be affected at the establishment, or 30 days if fewer are to be affected; and the State must be notified of the proposals on form HR1.

In any event, a fair procedure must be followed in respect of employees with ordinary unfair dismissal protection. This includes not only employees with 2 years+ service, but also those who are within a week of reaching 2 years’ service at the point notice of dismissal is given. This includes, where applicable, fair selection and, in any event, the reasonable opportunity to consult, consideration in respect of alternative positions, and the opportunity to appeal once the decision has been confirmed.

Employees with 2 years+ service will be entitled to statutory redundancy pay. Contracts of employment might provide for enhanced redundancy pay.

What if an employee needs to stay at home to care for a dependent – whether because they are sick or because educational establishments are closed?

In normal circumstances, it would not be appropriate for an employee to do work otherwise capable of being performed from home while also providing childcare. However, employers may now need to take a pragmatic, more flexible approach to homeworking.

Employees with younger children who require constant attention may not be able to work at all while responsible for looking after them. However, to the extent that childcare cannot be provided by others within an employee’s support network, they may be able to split it with a co-parent so that both parents are able to continue working – at least part-time. With co-operation between employers and employees, it might be possible for affected employees to fulfil some or all of their normal duties by working different patterns of hours to accommodate childcare commitments. Care should be taken to ensure that any changes to normal arrangements are properly thought out, including any impact on pay and benefits, and recorded in writing (which can include exchanges of emails) in order to minimise the possibility of disputes. This should include clarity regarding each party’s ability to revert to previous arrangements.

Employees who cannot practicably work from home may assert their statutory right to time off to care for a dependant. Time off in these circumstances is unpaid, unless there is a contractual right to pay.

The Chancellor did indicate when announcing the budget that the government intended to also extend SSP to employees caring for members of their household exhibiting symptoms of Covid-19, but this is not covered in the amended legislation, which provides that a person is deemed incapable of work where they are isolating themselves “from other people in such a manner as to prevent infection or contamination with coronavirus disease, in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales and effective on 12th March 2020." As it stands, therefore, carers – like anybody else – will only be covered by the new rule on deemed incapacity if the public health guidance as of 12 March required them to self-isolate (see above).

What can an employer communicate about an employee with coronavirus?

Under data protection law, personal data concerning health is 'special category data', and employers need to ensure that any communication does not include any data about the individual who is absent. For example, while it would be ok to announce that there has been a confirmed coronavirus case at a particular work place, it would not be appropriate to provide any details from which the individual might be identified.

Can employers be liable for discriminatory conduct by their employees?

There are reports of there having been harassment of or other discrimination towards individuals who are from, or perceived to be from, countries which were ahead of the UK regarding the spreading of the virus, particularly China.

Employers will be liable for unlawful harassment or other discrimination by their employees towards other employees, save where they can establish a statutory defence, which requires the taking of all reasonable steps to prevent the conduct. Having in place well-drafted equal opportunities and ant-harassment policies will not only help discourage such conduct, but will also provide a starting point for establishing a statutory defence. This will not be sufficient on its own, however. Further steps will be required, such as training and evidence of inappropriate behaviour being tackled, for an employer to avoid liability.

Employers in the financial services sector must also be aware that any failure to deal with these issues appropriately may have implications for the fitness and propriety of the senior managers who are responsible for these areas of the business.

What action might employers take at this point?

The action an employer might take will depend, to some extent, upon the nature of the workplace, the roles carried out and the demographic of the workforce, but some of the issues that employers should consider from an employment law perspective include:

  • The approach to sick pay in the various scenarios identified above. The employer should consider its contractual sick pay policy, and the practical implications on withholding pay or reducing pay to SSP. The employer will wish to balance the costs of paying full pay where they are not legally obliged to do so with the indirect costs (in terms of spreading the virus and increasing sickness absence) where employees attend work following potential exposure to the virus, or even when exhibiting symptoms of it, in order to continue receiving pay.
  • Whether the infrastructure is in place to allow the number of employees to work from home that will potentially be required. Can the IT system accommodate that many employees working remotely? Do employees have the hardware and software necessary to work from home? Will additional guidance need to be issued to reduce demand on the IT systems if many people will be working remotely simultaneously?
  • Compliance with government, Public Health England and Public Health Wales guidance on hygiene in the workplace, and other preventative measures. Consider appointing a coronavirus taskforce who are responsible for keeping track of developments, updating internal guidance and communicating with workers.
  • Clear communication with workers on the employer's policy on homeworking, work travel and precautionary isolation.
  • Ensure that employees have provided up to date personal details.
  • Take necessary measures in light of the closure of schools and nurseries. Identify business critical roles and how they can be maintained. Determine what pay employees will receive if they work part-time to fit around childcare, and the extent to which flexibly can be applied to allow as many employees as possible to continue working, or otherwise the statutory right to time off to care for dependants, annual leave or parental leave are to be exercised.
  • Provide clear information to managers on how to deal with an employee who attends work displaying symptoms, or who has potentially been exposed to the virus.
  • Identify any high-risk employees and consider whether there are any potential discrimination implications which mean a more cautious approach is required.
  • Critically consider whether any in-person meetings, travel or events are necessary. Consider whether meetings can be carried out through virtual meetings.
  • Identify the minimum safe level of workers required to continue operating, and how that can be maintained in the worst-case scenario; and how you would make changes to employees’ working hours and remuneration to effect this.. Consider the employment law consequences. Are lay-off / short-time working provisions in place? If not, think about obtaining advice on their introduction. Consider the government’s Coronavirus Job Retention Scheme.

For the government’s latest published information, including a further link to up to date guidance from Public Health England, click here. To access Public Health Wales’ website click here.

Whilst we hope that the above is of assistance, please note that it does not constitute our formal legal advice. For formal advice on any of the issues referred to above, please contact us on 0800 294 5927 or click here to place an on-line enquiry.

For advice on any of the employment-related issues referred to above, please contact us.

John Merry
Partner
Head of Employment

Workers and TUPE

An employment tribunal has held for the first time, in the case of Dewhurst v Revisecatch Ltd, that workers who are not engaged under contracts of employment qualify for protection under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”).

Such workers contract to provide their services personally but are not carrying on a business on their own account (i.e. they are not self-employed).

TUPE applies to ‘employees’ as that term is defined in those regulations, which are individuals working under ‘a contract of service or apprenticeship or otherwise’, but excluding the genuinely self-employed.

Three cycle couriers worked for CS (UK) Ltd in relation to its contract with HCA Healthcare. Revisecatch Ltd took over the contract with HCA Healthcare and also engaged the couriers to work on that contract. The couriers brought claims, including for failures to inform and consult under TUPE.

This decision is not binding on future employment tribunals, and provides only persuasive authority. Clearly, however, the risk is there that future tribunals could take the same approach to the application of TUPE to workers.

Accordingly, it would be prudent for businesses, who are involved in a TUPE situation, to include workers in information and consultation exercises and the disclosure of statutory employee liability information (“ELI”), and for prospective transferees to include workers within the scope of due diligence exercises and indemnity protections - or otherwise to be prepared for the potential consequences of not doing so.

Breaches of the requirements of TUPE in relation to information and consultation can result in awards of compensation up to the value of 13 weeks’ pay for each affected individual.

Transferees can claim compensation for losses incurred as a result of failures in relation to the provision of ELI, subject to a minimum of £500 per relevant individual.

Further, if a worker is subject to TUPE, transferees will be liable for any pre-transfer acts or omissions of the transferor, such as in relation to unpaid wages or holiday pay or unlawful discrimination. However, as workers do not have unfair dismissal protection, it will be possible for transferees to terminate their contracts, subject to any notice obligations.

Whilst it will be possible for transferees to effectively vary the contractual terms of workers who they retain only in limited circumstances, the absence of unfair dismissal protection means that it will be open to them to terminate workers’ contracts and to offer re-engagement on different terms.

If you have any queries about TUPE, please contact our employment law specialists here.

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