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Holiday & COVID-19

The government has published guidance on workers' entitlement to holiday and holiday pay during the COVID-19 pandemic. It addresses the position of workers who continue to work and those who have been placed on furlough under the Coronavirus Job Retention Scheme (“the Scheme”). However, it has no legal effect, and tribunals are not required to follow it when deciding holiday cases.

The new guidance confirms that furloughed workers accrue holiday like any other worker, and can take holiday subject to the usual notice provisions, without breaking the furlough period. However, employers must pay normal pay during holiday, and may therefore need to top up any furlough pay. This much has been stated in the government’s separate guidance on the Scheme for some time – but the guidance on the Scheme is silent on when employers can compel furloughed employees to take holiday.

On this point, the new guidance states:-

"If an employer requires a worker to take holiday while on furlough, the employer should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday."

The caveat reflects principles set out in European case law, which call into question whether an employer can force a worker to take holiday at all during the “lockdown”, not merely during furlough - but the government does not offer an answer to the question and so may be adding to, rather than helping to resolve, confusion among employers as to their legal obligations.

Our view is that employers can compel employees to take holiday during the period of restrictions on social movement, including employees on furlough, on the basis that they are not prevented from resting or relaxing or (albeit perhaps not as much as in normal circumstances) enjoying a period of leave. The more the “lockdown” measures are relaxed (as they have started to be), the stronger this argument becomes.

To confirm, as indicated in the new guidance, unless a contract of employment or some other workforce agreement provides otherwise, if an employer wishes to compel an employee to take part of their holiday entitlement under the Working Time Regulations, they must provide notice of at least twice the duration of the holiday to be taken.

The guidance also deals with the practical effects of the Working Time (Coronavirus) Amendment Regulations 2020, which permit the carry-over of any untaken leave due to COVID-19. It gives examples of when it might be considered not reasonably practicable to take holiday during the leave year. It suggests that for furloughed workers, carry-over would rarely be justified if they were able to take holiday during the furlough period (although it might be justified if the employer could not afford to top up their pay).

The guidance also deals with holiday rights for agency workers.

Coronavirus Job Retention Scheme Extended to End of October

The Chancellor, Rishi Sunak, has announced today that the Job Retention Scheme will be extended to the end of October.

There are to be no changes in the Scheme until the end of July: 80% of employees’ pay up to a cap of £2,500 per month will still be funded, plus associated auto-enrolment pension contributions and employer national insurance contributions.

However, the Chancellor said the government will ask companies to "start sharing" the cost of the scheme from August onwards, with “greater flexibility to support the transition back to work”.

Employers are to be able to bring furloughed employees back part-time whilst still being able to claim funding – something which is not possible at present.

More details are to be announced by the end of May.

The Impact of COVID-19 on Witnessing Documents

When it comes to the witnessing of deeds, there are rules in place to protect the interests of the parties involved. The purpose of signing a document as a deed is to remove any ambiguity or potential issues that might arise in respect of the validity of the deed.

One of the most prominent rules of best practice is that the witness to a signature should be an independent party and should not be a family member of the individual signing. These rules are widely acknowledged to be correct in the eyes of the legal system, but they are given no statutory support. This means that it is still a possibility for a family member to be a witness to a signature.

Rules for witnessing documents

  • The witness will be an independent party
  • The witness may not be a family member or another party to the contract
  • The witness will be physically present
  • The witness signs to attest the signature of the signatory

How has COVID-19 affected these rules?

Given the current ‘stay at home’ guidance, logistical challenges have arisen for those who are currently in the process of entering into contracts.

In a world where working from home and video conferencing has very quickly become the norm, it seems a reasonable suggestion that witnessing via video link might be a good option. However, in a 2019 report, the Law Commission were not convinced that witnessing via video link was a valid option for deeds and so, this cannot be done without scope for potential objection into the validity of the deed in the future.

Prior to COVID-19, it was acknowledged by the Lord Chancellor that there were concerns surrounding document execution. The Law Society have more recently issued updated guidance that the law has remained unchanged since the outbreak of the pandemic.

Law Society update

It has been recognised that the need for electronic signatures, virtual execution and witnessing of documents has increased dramatically over recent weeks and that further clarification is needed to provide certainty for solicitors and their clients.

The Law Society guidance aims to allow transactions to continue in an evolving commercial environment, in a practical and pragmatic manner, whilst providing legal certainty.

Witness criteria

General guidance states that the practical means of witnessing different forms of electronic signature will need to be settled on a case-by-case basis, with consideration given to the evidential weight of the form agreed. However, the leading opinion is that it is best practice for the witness to be physically present when the signatory signs, rather than witnessing through a video conferencing facility, in order to minimise any evidentiary risk as to whether the person genuinely witnessed the signing.

Even in light of COVID-19, this has been accepted by The Law Society to remain as best practice. However, given health risks, it has been suggested that it may be necessary to modify practice to suit the current circumstances.

New ‘Best Practice’

The Law Society have stated that this can be achieved by obtaining a number of verification sources. It has also been suggested that there is no reason why the document cannot be signed using a combination of different methods, so long as each party uses a valid signature method.

The witnessing of documents during this period of uncertainty will be dealt with on a case-by-case basis. This decision process will have regard to the type of document, the brevity of the document and the nature of the transaction. With there being no statutory restrictions on spouses being the witness to a deed, this is a viable option in the current circumstances and is more likely to be upheld as valid than it would be in a normal working situation.

If you would like more information or advice regarding the witnessing of documents, please contact the corporate and commercial department.

Coronavirus: Changes to Social Care, NHS Funding and Educational Support

On 25 March 2020, the Coronavirus Act 2020 received Royal Assent. While most of us will be aware of the more familiar aspects of the Act from media coverage, the Act also introduced powers that deal with state provision of care and educational support for vulnerable children and adults.

Social Care

Under a series of “easements” provided by the Act, local authorities no longer have to undertake an assessment of a person’s care needs, as required under the Care Act 2014 in England and under the Social Care and Well-being (Wales) Act 2014, nor determine eligibility to have such needs met, or provide a care and support plan to meet those needs.

It should be noted that these provisions are permissive, so that, rather than having an immediate and uniform effect across the country, each Social Care department has been left to make a decision at local level as to whether to apply the easements. Where a local authority makes a decision to apply these easements, it means that it still has the power to carry out needs assessments and meet those needs, but it is not under a duty to do so.

Where a local authority does decide to meet a person’s care needs, the Act removes the obligation on that local authority to carry out an assessment of the person’s ability to pay for any services. However, they have been given powers to carry out financial assessments at a later date, and can charge retrospectively.

People are encouraged to contact their local authority to establish whether it has decided to implement the provisions as we are aware that this information is generally not being publicised at local level.

Continuing Healthcare Funding

The Act also removes the duty of the NHS and Clinical Commissioning Groups in England to undertake an assessment of a person’s eligibility for CHC funding, or to have regard to the National Framework that governs such assessments.

Such assessments are likely to be deferred until after the emergency period and it is anticipated that where it appears to the relevant NHS or CCG body that a person may have such needs, they will be discharged from hospital on a NHS-funded pathway.

Educational Support

Where a child has the benefit of an Education Health Care plan (EHCP) agreed and provided by the local authority, the Act permits the absolute duty of the local authority to make such provision to be replaced with a “reasonable steps” duty. What may amount to reasonable endeavours has not been defined and, to date, local authorities have not been provided with guidance.

Note that these changes will only apply if and when the Secretary of State, or the Welsh Ministers, make an order to this effect. To date, no such order has been made.

Containers as Homes, Businesses & Shops: From a Planning Lawyer's Perspective

We have received a number of queries about installing and living in storage containers – so-called ‘container homes’ – particularly on agricultural land or within the countryside. Judging from the articles like these - https://www.sjonescontainers.co.uk/containerpedia/shipping-container-homes-uk-planning-permission-regulations/ and https://www.sjonescontainers.co.uk/containerpedia/shipping-container-homes-uk-planning-permission-regulations/ - container homes are being promoted as a quicker, less expensive alternative to traditional built brick and mortar houses.

The first article provides a useful definition of container homes stating:

“Container homes are homes made from the large metal shipping containers you see transporting goods on ships, trucks, and trains – or being used to store goods. Shipping containers are designed to travel long distances around the world, and as a result, are made from highly durable materials such as steel. This makes them extremely durable and enables them to withstand wear and tear and remain in excellent condition for many years. Container homes also have significantly lower construction and maintenance costs when compared to traditional homes, which makes them extremely appealing to potential housebuyers.”

There are obvious advantages to using ready-made container homes over having to actually build a house. However, a significant consideration is whether such a move requires planning permission. While the articles above attempt to outline the planning implications, people still come to us, as planning lawyers, for certainty as to whether container homes will deliver what they want: a home in a nice green area and perhaps a reduction of the some of the bureaucracy that comes with engaging the planning system.

To understand how planning controls relate to container homes, it is important to understand some basic planning principles. Planning controls, and therefore the need or otherwise to apply for planning permission, revolve around the concept of ‘development’. If one’s actions constitute ‘development’, planning permission will be required, unless specified exceptions apply. Another important principle is that planning permission can be granted individually, nationally, by virtue of permitted development rights or, less frequently, locally by a development and other types of orders.

‘Development’ is defined as either operational development or a material change of use of an area of land often referred to as a planning unit. Operational development encompasses building, engineering, mining and other operations – building operations being most relevant to this article.

How does this fit in with container homes? If you bring a container home on to your land, have you carried out ‘development’? Not necessarily. It is not usually classed as operational development as you haven’t built anything, nor is the simple act of bringing a container on land materially changing the use of the land. However, things can get complicated and if alerted, the local planning authority - the Council - may want to find out what is going on.

Firstly, there is a chance that the authority will class a container or any other mobile structure as ‘operational development’ if that structure is substantial, has been on (or is likely to be on) the same spot on the land for a long period of time or is physically attached to the land. There is a whole raft of complex case law about this and if this is likely to arise, the situation requires careful assessment by the landowner (or tenant or other occupier) or preferably their lawyers or professional advisers and the Council.

The more common issue revolves around what the landowner does with that container and whether it amounts to a material change of use and therefore development. If the container is used in conjunction with the main use of the land, there is unlikely to be a material change of use and planning permission will not be required. For instance, if a storage container is brought on to agricultural land to store animal feed, produce or medicine, planning permission will not be required. Planning permission will also not be required for a storage container brought on to residential land (or a house and garden) to store gardening or domestic items.

However, if the landowner wants to use the container for a use which is unconnected to the main use of land, the question may arise as to whether there has been a material change of use. An example of this is if someone places a storage container on agricultural land to live in. As the lawful use of the land is agricultural, that person would be introducing a residential use to that land. This is likely to amount to a material change of use, would require further investigation and may result in the need to apply for planning permission.

The person would also need to consider what other work may be required to make the container habitable, like hardstanding to place the container on, or to construct a drive or an earth bund for whatever reason. These may amount to building or engineering works which require planning permission.

The linked articles above also make reference to placing containers in gardens and measurements relating to covering more than half of the garden. This relates to certain procedures and limitations set out national permitted development rights, mentioned above, which the landowner will need to consider before taking advantage of those rights.

The question we often get asked goes something like this ‘I want to bring a container on to the land to live in. What is the best way of going about it?’ The landowner may want to know, having read articles such as the ones above, things like ‘Should I buy this container home? Will it really deliver what I want, which is a cheap, quick home without the hassle of engaging the planning authorities?’

The answer, rather than a quick guarantee over the phone, often includes some of the following: a detailed check about what kind of container you want to buy, what its dimensions are and where you want to put it; the lawful planning use of the land you want to put it in; planning laws regarding the definition of development; a risk assessment relating to planning enforcement, and a review of the planning policies in the area regarding land use, design and sustainability.

Business Bounce Back Loan Scheme - 'Small Businesses' Open for Business

Are you a small business working against all odds to push through the COVID-19 crisis? Today, 4 May 2020, the Government launched a business loan which is 100% guaranteed. If you have been negatively affected by COVID-19 you could be eligible to apply for this Government-guaranteed loan of between £2,000 and £50,000.

The scheme has been designed to ensure that small businesses, which need vital cash injections to keep operating, can get finance in a matter of days. The thinking behind this is that the small businesses in our economy are the backbone of our society and hence, this new rapid loan scheme is attempting to lift these businesses up during these uncertain times, in order to protect jobs, business structures and the future of our economy.

This loan scheme offers many benefits and incentives to businesses. Firstly, the loan is interest free for the first 12 month period, meaning that as a business, you are able to get back up and running before any repayments are due. Secondly, it has a six year loan term but allows for early repayment to be made, without incurring any extra charge. As well as this, the interest rate has been set at 2.5% per annum by the Government, meaning that there are no lender-levied fees. Therefore, from the start of the loan term, you will have certainty in knowing how much your business will need to repay by the end of the term. Finally, when the lender is considering your application, they are not entitled to take any form of personal guarantee. This means that any recourse for repayment of the loan will be against the business, thus limiting the personal liability of directors/managers.

To be eligible for this loan, an applicant must be a small business situated within the UK, the business must have been negatively affected by COVID-19 and it must not have been an “undertaking in difficulty” on 31 December 2019. An “undertaking in difficulty” means a business which met the criteria for insolvency under the Insolvency Act 1986.

In addition, a business will not be eligible if it is: a credit institution, an insurance company, a public-sector organisation or a state-funded primary or secondary school.

If your business qualifies and meets all of the relevant criteria, as set out by HMRC and the British Business Bank, then you will be able to borrow up to 25% of your turnover in the 2019 calendar year (up to a maximum of £50,000). If you set up your business after 1 January 2019, you will still be able to apply for the loan but instead it will be based on your estimated annual turnover from the date you started your business.

It has been suggested that you may be able to apply to refinance an existing loan that was taken out as a result of COVID-19. For example, if you have taken out a Coronavirus Business Interruption Loan, a Coronavirus Large Business Interruption Loan or a COVID Corporate Financing Facility loan, you may be able to switch to the Business Bounce Back Loan Scheme. You will need to talk directly with your lender to see if they will agree to do so. There is no guarantee that lenders will allow this.

If you are interested in applying for the Business Bounce Back Loan Scheme you should, in the first instance contact an accredited lender listed under the scheme guidance.

If you would like to discuss this or any other loan terms, please do contact the corporate team at Lanyon Bowdler who are happy to assist.

Invisible Disability

In his early days in show business, actor and comedian Kenneth Williams wrote to a close friend about a mutual colleague in the theatre who had to withdraw from a play because of a growth, which turned into a permanent throat disorder. “Such a bore that kind of thing” said Williams “not even what you can call an interesting complaint. I mean, you can’t even show it to anyone can you!”

Later in life, before his own untimely death, he found his own various hidden illnesses were more than boring, rather they were frustrating as “The pain is agony. Can’t stand. Oh these are awful days to live through, and the idea of going to do publicity photos. What a joke to think I was smiling and smirking into the camera for these photos, with the inside crying out ‘Die’-forget it with the ever present pain”.

As we can see from these observations, one of the major problems faced by people who have invisible disabilities is that often other people don’t see the disability and often don’t believe them.

Invisible Disability

What is an Invisible Disability?

Invisible Disability, or hidden disability, is an umbrella term that captures a whole spectrum of hidden disabilities or challenges, which are primarily neurological in nature. An invisible disability is a disability that cannot be seen, it may not require a wheelchair, crutches or a blue badge. Some are not immediately obvious, such as learning difficulties, mental health as well as mobility, speech, visual or hearing impairments.

Living with a hidden disability can make daily life more demanding for many people, but it can be difficult for others to recognise, acknowledge or understand the challenges you face.

Some people with visual or auditory disabilities, who do not wear glasses or hearing aids, or discreet hearing aids, may not be obviously disabled. Some people who have vision loss may wear contacts. A sitting disability is another category of invisible impairments; sitting problems are usually caused by chronic back pain. Those with joint problems or chronic pain may not use mobility aids on some days, or at all. Although the disability creates a challenge for the person who has it, the reality of the disability can be difficult for others to recognize or acknowledge. Others may not understand the cause of the problem, if they cannot see evidence of it in a visible way.

Some Types of Invisible Disabilities

  • Chronic Pain: A variety of conditions may cause chronic pain. A few of those reasons may be back problems, bone disease, physical injuries, and any number of other reasons. Chronic pain may not be noticeable to people who do not understand the victim’s specific medical condition.
  • Chronic Fatigue: This type of disability refers to an individual who constantly feels tired. This can be extremely debilitating and affect every aspect of a person’s everyday life.
  • Mental Illness: There are many mental illnesses that do qualify for disability benefits. Some examples are depression, attention deficit disorder, schizophrenia, agoraphobia, and many others. These diseases can also be completely debilitating to the victim, and can make performing everyday tasks extremely difficult, if not impossible.
  • Chronic Dizziness: Often associated with problems of the inner ear, chronic dizziness can lead to impairment when walking, driving, working, sleeping, and other common tasks.
  • Acquired Brain Injury: Following either an accident, or a birth defect, brain injuries can affect people in different ways, and to different degrees of severity.

People with psychiatric disabilities or acquired brain injuries make up a large segment of the invisibly-disabled population.

It is estimated that 10% of people have a medical condition which could be considered a type of invisible disability, 96% of people with chronic medical conditions live with an illness that is invisible.

Many people living with a hidden physical disability or mental challenge are still able to be active in their hobbies, work and be active in sports. On the other hand, some struggle just to get through their day at work and some cannot work at all.

Invisible Disability in Society

A growing number of organisations, governments and institutions are implementing policies and regulations to accommodate persons with invisible disabilities. Governments and school boards have implemented screening tests to identify students with learning disabilities, as well as other invisible disabilities, such as such as vision or hearing difficulties, or problems in cognitive ability, motor skills, or social or emotional development. If a hidden disability is identified, resources can be used to place a child in a special education program that will help them progress in school.

The Hidden Disabilities Sunflower Lanyard

Be Visible When You Want To Be

Wearing the Hidden Disabilities Sunflower discreetly indicates to people around you, including staff, colleagues and health professionals, that you may need additional support, help or a little more time.

In addition to the lanyard scheme, places like airports are also doing their bit to help people with invisible disabilities. Gatwick airport is said to have first introduced the sunflower lanyard program in 2016. Since then, most UK airports have welcomed and adopted the idea.

Airport staff can help passengers with lanyards by;

  • Giving them more time to prepare for security checks and boarding
  • Letting them stay with family members at all times
  • Giving them clear instructions to follow
  • Explaining, in detail, what they can expect when travelling through the airport

Manchester Airport also has a Sunflower room, which allows wearers of the sunflower lanyard to escape the hustle and bustle of the departure area if needed.

Several supermarkets, train lines, ferries, visitor attractions and sporting venues also recognise the sunflower lanyard and have specifically trained staff to help.

How to get a Lanyard

  • Airports: If you’re due to fly from a major UK airport, you should be able to ask for a lanyard from an airport assistance desk, or order it in advance, depending on your chosen airport. Find out more about the best way of getting the lanyard by contacting the airport before you travel.
  • Railways and ferries: Contact customer services before you travel or ask at station booking offices or check-in desks.
  • Supermarkets and retail stores: Request the lanyard at the customer service desk of larger stores or shopping centres or at the checkout at smaller stores.
  • Visitor attractions and leisure providers: Ask at the tills or information points, or contact customer services in advance.
  • Hospitals: The main reception desks should be able to give you a lanyard, or tell you about the other areas of the hospital where you can collect one.
  • Sports venues: Contact the ticket office.

SMP and Other Family Leave Payments for Furloughed Employees

Entitlement to, and the rate of, maternity allowance and statutory maternity, paternity, adoption, shared parental and parental bereavement pay depend on an employee's normal weekly earnings. Normal weekly earnings are calculated as a weekly average of the employee's total gross earnings from the employer and any associated employers during a reference period.

In the case of statutory maternity pay, for example, the reference period ends with the last normal pay day on or before the end of the Qualifying Week (which is the 15th week before the expected week of childbirth) and begins after the last normal pay day at 8 eight weeks earlier.

Some (but by no means all) employees have their pay reduced when they are furloughed and their employer is claiming payments under the Coronavirus Job Retention Scheme (which, in basic terms, covers 80% of payments to employees up to a total of £2,500 per month). Without more, such reductions in pay during the period over which normal weekly earnings are calculated for the above purposes would always affect the first 6 weeks’ entitlement to SMP (which is paid at 90% of normal earnings), and in certain circumstances it could affect entitlement to and/or the level of any of the above payments.

However, regulations came into force on 25 April 2020 which provide that where somebody is on furlough during part or all of the period over which normal weekly earnings are calculated and their pay is reduced as a result, the calculation will be based on the pay that they would have received if they were not furloughed.

The regulations apply where the first day of the period in which statutory pay is payable is on or after 25 April 2020.

#TwoPointSixChallenge

The coronavirus pandemic has had a catastrophic effect on the charity sector and has led to the cancellation of thousands of fundraising events and the loss of billions of pounds in income which is normally generated.

The world’s biggest one-day fundraising event; The Virgin Money London Marathon, which should have taken place yesterday on Sunday 26 April, raised more than £66.4 million alone for thousands of charities in 2019.

Many charities have had to stop or reduce their services, at a time when vulnerable members of society need them the most and it is feared that many charities will struggle to survive.

The campaign was launched on 26 April and is being backed by a number of high profile celebrities. The 2.6 Challenge can be any activity you like from running 2.6 to 26 miles in your back garden, to baking 26 cupcakes. Whatever your age or ability, you can take part and become a ‘Home Hero’.

So, this weekend, like many others across the country, I decided to do my bit and set my own 2.6 Challenge. Having the excuse of being 18 weeks pregnant with a rather large developing ‘bump’, I was somewhat restricted by my choice of activity (and rather relieved that my ‘bump’ got me out of anything too energetic!). That left me thinking. I wanted to come up with a unique idea that would help inspire others to get involved.

After deliberating over a number of ideas, my challenge was inspired by the fact that I live on a farm and I very quickly decided that it should involve animals. The most practical and safest idea (in my current condition!) was to fetch in 26 sheep and brand them ‘2.6’ using a washable spray maker. I also thought it would be a great way of marketing the event to others, especially when any passers-by happen to see a field of sheep with 2.6 written on them.

Little did I know it was actually going to be more challenging than I had first thought! Firstly, to catch 26 sheep in a field of 250, without a sheepdog, involves bringing the entire flock home and into the shorting shed. Then, put all 250 sheep through the run just to select only 26 willing participants. It is also harder than you think spraying the perfect “2.6” on the back of a sheep who refuse to stand still but with my little three year old helper, we got there in the end!

Lanyon Bowdler are committed to supporting a number of small local charities and like me, several of my colleagues decided to get involved and help raise some much needed cash for our five chosen charities; The Movement Centre, Cuan Wildlife Trust, Headway Shropshire, Herefordshire Headway and The CLD Trust.

Neil Lorimer, partner and head of our personal injury team has taken up running since the lockdown and has been doing the couch to 5k, so this was a great opportunity for Neil to progress closer to that 5k milestone by completing a 2.6 mile run (equivalent to 4k). Chanaleigh Hughes and Katie Little also ran 2.6 miles, whilst Sian Danford completed 262 laps of her back garden. Emma Broomfield walked 2.6 miles with her husband who also completed a 2.6 x 2.6 run.

Amanda Clarke spent 26 minutes jogging on her trampoline, Wendy Sharland baked 26 cupcakes which she donated to her local foodbank and Vanessa Ford completed 26,000 steps. Holly Edwards completed 26 burpees (ouch!), Kelly Stant climbed the staircase of her apartment block 26 times, and Keria Lorimer made her boyfriend Aaron complete 2,600 keepy uppies which he managed to do in 22 minutes.

Debbie Brooks decided to make her 2.6 challenge a family affair and made everyone choose something to do over the weekend. Debbie completed 2.6 miles in laps around garden and up and down her drive while her husband did 260 laps. Their eldest son challenged himself to 260 press-ups in under 10 minutes and their youngest son decided on 26 upside down press-ups against the wall. Even Jess the dog got involved with 26 hi-fives!

You can see all of the photos and videos of our challenges on our facebook page.

I have to say, I’m particularly looking forward to seeing Dawn Humphries complete her 2.6 Challenge. Dawn, a budding yoga guru had set herself the task of completing 26 yoga poses, taking a sip of her favourite gin between each changeover!

How you can help

If you would like to support Team LB with our 2.6 Challenge then you can donate by following the link to our fundraising page https://uk.virginmoneygiving.com/Lanyon-Bowdler

If you would like to join the country and do the 2.6 challenge to help save the UK’s charities then head to the official website for more ideas and information https://www.twopointsixchallenge.co.uk/.

Debt Recovery During COVID-19

With the COVID-19 pandemic bringing uncertainty and exceptional circumstances to businesses, cash flow should be a top priority. Our debt recovery experts are here and able to assist both existing and new clients with their queries and provide commercially focused, practical advice on options available to them.

Whilst it is likely that some businesses and individuals may not be able to repay their debts in full during this time, companies should not let this discourage them from taking action if an agreement cannot be reached. Our team will be able to assess your needs and provide advice on letters of claim, negotiating repayment plans, issuing claims and obtaining a County Court Judgment and thereafter enforcement during, and after, the current government restrictions. It is vital that action is taken now to ensure you are put to the forefront of a potentially long list of creditors resulting in a more positive outcome.

For further information about out debt recovery services, please contact me on 01952 211024 or by emailing debtsolve@lblaw.co.uk

CJRS - Latest Guidance and Treasury Direction

After it was announced on 17 April that the Coronavirus Job Retention Scheme (“the Scheme”) has been extended from 31 May 2020 to the end of June, the government issued the fifth iteration of its guidance on the Scheme. The latest guidance for employers, updated yet again on 20 April, is here and that for employees is here.

The HMRC portal through which employers can claim under the Scheme went live on 20 April. For details of how to claim and further link to the portal click here.

On 15 April the Treasury issued a direction to HMRC regarding the operation of the Scheme (“the Direction”) which, unlike the guidance, has statutory force. In certain key respects, the Direction contradicts the guidance, and in others is at best ambiguous. In this blog, I highlight the latest developments in the government’s guidance and consider how the Direction and the guidance inter-relate.

Holiday

A long-standing frustration was that the government’s guidance was silent as to the inter-relation between furlough and holiday. The Direction also did not shed any light on the matter.

However, the guidance for employees and the part of the guidance for employers relating to what they can claim now state that it is possible to take holiday while on furlough, and that the holiday pay paid must be the full entitlement in accordance with the Working Time Regulations (“the Regulations”). Although the guidance is silent on the point, holiday pay entitlement in respect of any element of annual leave beyond the 5.6 week entitlement under the Regulations will be governed by the contract of employment.

The guidance is silent on whether an employer can compel an employee to take annual leave while on furlough. This is a matter for advice in individual circumstances.

The guidance concludes this section by saying: "During this unprecedented time, we are keeping the policy on holiday pay during furlough under review." Therefore, this might not be the final position.

The reason for furlough

The Direction states that the purpose of the Scheme is “to provide for payments to be made to employers on a claim made in respect of them incurring costs of employment in respect of furloughed employees arising from the health, social and economic emergency in the United Kingdom resulting from coronavirus and coronavirus disease“.

It goes on to provide that no claim may be made “if it is abusive or is otherwise contrary to the exceptional purpose” of the scheme, and that claims can only be made for a employees who are furloughed “by reason of circumstances arising as a result of coronavirus or coronavirus disease“(but it is expressly not a condition that furloughed employees would otherwise have been made redundant).

The guidance is not at all as explicit that the decision to furlough must be causally connected with circumstances arising due to the pandemic. It states that the Scheme “is designed to help employers whose operations have been severely affected by coronavirus… to retain their employees and protect the UK economy. However, all employers are eligible to claim under the scheme and the government recognises different businesses will face different impacts from coronavirus.” It is the case, though, that employers who are identified in the event of an audit to have claimed in relation to employees who have been furloughed for reasons unconnected with circumstances arising from the virus outbreak will be at risk of having to reimburse monies received and, perhaps, facing penalties including, depending on the circumstances, prosecution for fraud.

Consent to furlough

There has always been confusion in some quarters as to whether the agreement of an employee is required to place them on furlough. This will not have been helped by the wording of some of the government’s guidance to employees. The current iteration states:

If you and your employer both agree, your employer might be able to keep you on the payroll if they’re unable to operate or have no work for you to do because of coronavirus (COVID-19). This is known as being ‘on furlough’.

and

Both you and your employer must agree to put you on furlough - so speak to your employer about whether they can claim. Once agreed your employer must confirm in writing that you have been furloughed to be eligible to claim.

This contrasts with the guidance to employers. The first iteration stated that an employer merely needs to write to the employee notifying them that they have been furloughed. The second, third and fourth iterations repeated this, and added that the employer needed to keep a copy of the written notification for five years.

Specifically, the current iteration states under the heading ‘Agreeing to furlough employees’:

Employers should discuss with their staff and make any changes to the employment contract by agreement. When employers are making decisions in relation to the process, including deciding who to offer furlough to, equality and discrimination laws will apply in the usual way.

To be eligible for the grant employers must confirm in writing to their employee confirming that they have been furloughed. If this is done in a way that is consistent with employment law, that consent is valid for the purposes of claiming the CJRS. There needs to be a written record, but the employee does not have to provide a written response. A record of this communication must be kept for five years.

And under the heading ‘Before you claim’, it states:

Employers should discuss with their staff and make any changes to the employment contract by agreement. Employers may need to seek legal advice on the process. If sufficient numbers of staff are involved, it may be necessary to engage collective consultation processes to procure agreement to changes to terms of employment.

So the only context in respect of which the guidance for employers requires the agreement of the employee is in relation to any changes in their contract of employment. Changes in the contract of employment will be required only if the employer is not to continue to pay the employee in full and the contract of employee does not provide the employer with the right to apply the relevant reduction in pay (such as under a lay-off clause, which will typically provide the employer with the power to reduce pay to nil, subject to an obligation to pay statutory guarantee pay of £30 per day for up to one week every three months). This reflects the position under the general law, and the reference to the general requirement for employee consent in the guidance for employees is otiose.

However, the Direction not only stipulates at paragraph 6.1 that there must be an instruction by the employer to the employee to cease all work in relation to their employment but, out of nowhere, adds at paragraph 6.7 that:

An employee has been instructed by the employer to cease all work in relation to their employment only if the employer and employee have agreed in writing (which may be in an electronic form such as an email) that the employee will cease all work in relation to their employment.

Of course, this is completely at odds with the guidance to employers, and it also goes beyond what is stated in the guidance to employees – which does not require a specific agreement that the employee “will cease all work”, or require that any agreement with the employee is in writing. Indeed, there will be many instances where an employee has been, or will be, furloughed when they will already have ceased work, and therefore where it would not be practicable to direct the employee to cease work or to obtain their agreement that they will do so, e.g. where their employment had previously terminated and they are being reinstated to be furloughed, they are returning from unpaid leave or maternity/paternity/parental/adoption leave, or they have been on sick leave or off work in isolation.

There will be many thousands of employers who have furloughed employees without any kind of agreement with them at all, including where agreement has not been required in accordance with the government’s guidance to employers. Where some form of agreement has been obtained, it will be relatively rare that there is written agreement in terms that the employee “will cease all work”.

In my view, the stipulation in paragraph 6.7 is likely to have been made without due consideration and, in any event, without the intention of imposing a requirement that employees must have consented to cease work, whether in writing or otherwise. Accordingly, I consider that this stipulation is likely to be overridden by a future direction or else not enforced by HMRC when auditing employers’ claims under the Scheme (to the extent that it is to do so). There are several reasons for this, which include that:

  • Paragraph 6.7 is contrary to what has been the government’s guidance for employers from the outset, and indeed as restated on 17 and 20 April, after the Direction was issued.
  • Paragraph 6.7 defies all logic and common sense. The government introduced the Scheme in order to provide much needed relief to employers and their employees to help mitigate the catastrophic economic impact of virus outbreak. It would be massively politically damaging to the government to apply a needless and unjustifiable technicality that would prevent employers who have acted in accordance with their published guidance from recovering payments under the Scheme – including to the extent that this could contribute to employers ending up having to make redundancies, or indeed going out of business altogether, when the principal aim of the Scheme is to protect jobs.
  • If paragraph 6.7 stands and HMRC enforce it, the Treasury will doubtlessly be the subject of countless applications for judicial review on the basis that employers had a legitimate expectation that HMRC would act in a way consistent with the published guidance. Such applications will be costly and time consuming to fight, and seemingly destined to succeed.

In any event, a practical point to bear in mind is that HMRC will be paying claims as submitted, so even if paragraph 6.7 stands and will ultimately be enforced (subject to any application for judicial review), this will only be an issue for employers who are without the relevant written agreements if they happen to be audited in the future.

Those points having been made, unless and until there is a future direction to override paragraph 6.7, it would be prudent for employers to obtain from employees who are furloughed in the future their written agreement that they will cease all work and, to the extent it has not already been obtained, also written agreement to this effect from employees who have already been furloughed. It is unclear whether, to the extent that paragraph 6.7 is to stand and is to be enforced, such agreements can be effectively backdated, but they should at least purport to have effect from the date that furlough commenced. If backdating turns out not to be permitted (and any application for judicial review regarding the entire effect of paragraph 6.7 were to fail), at least agreement will be in place going forwards.

Sickness absence and furlough

The guidance originally stated that a period of furlough subject to funding under the Scheme could not be commenced for employees who are on sick leave or who are self-isolating and are entitled to statutory sick pay (“SSP”) until the period of entitlement to SSP ends. However, in the third iteration of the guidance, released on 9 April, the position was reversed and since then, including as updated on 17 and 20 April (i.e. after the Direction was made), the guidance has expressly stated that employers may place on furlough employees who are on sick leave, if they so wish. For further details of how sickness and furlough inter-relate according to the government’s guidance, click here.

The guidance also expressly states that employees who are shielding in line with public health guidance can be furloughed. Following a statutory amendment on 16 April, with retrospective effect to 13 March, such employees are also entitled to SSP.

However, paragraph 6.3 of the Direction stipulates, counter to this, that if an employer gives an instruction to cease work at a time when an employee is entitled to SSP, the period of furlough cannot commence under the Scheme until the period of entitlement to SSP has ended. My view is that rather than the Treasury having made a deliberate decision to adopt a contrary position to the guidance, this is likely to have been the mistaken incorporation of an aspect of an outdated iteration of the guidance. Nevertheless, if this is not addressed in a future direction, it will be open to HMRC, in the event of an audit, to demand repayment of sums claimed under the Scheme in respect of employees who were entitled to SSP at the date that the employer purported to commence furlough until the earlier of the end of the period of entitlement to SSP and the end of furlough. This could of course cover a prolonged period, whether for an employee with a medium or long-term condition or one who is shielding in accordance with public health guidance. Again, however, any such stance by HMRC would be vulnerable to judicial review on grounds of the employer’s reasonable expectation.

Qualifying employers

The guidance has always stated that the Scheme excludes public sector or publicly-funded employers. However, there is no such exclusion in the Direction. Arguably, the guidance on this point is no more than an encouragement to public sector and publicly funded employers not to draw on public funds through applying to the Scheme and, absent a further direction to preclude it, public sector and publicly funded employers are just as eligible to apply to the Scheme as any other employer.

TUPE and successor businesses

The guidance was originally silent as to whether a transferee employer could apply the Scheme to employees who transferred to it under TUPE or the Employment Rights Act.

However, the third iteration of the guidance stated that transferees can claim under the Scheme for employees who transferred to them after 28 February 2020 – which was the original qualifying date for employment for employees who could be furloughed under the Scheme. When the qualifying date was changed to 19 March, the guidance was updated to refer to transfer after that date. This will be subject to the employee having been on the transferor’s payroll and having been subject to an RTI submission as of 19 March. The Direction also reflects this position.

However, as things stand, employees who transferred after 28 February but before 20 March cannot be furloughed under the Scheme – notwithstanding that all other employees who were on an employer’s payroll and subject to an RTI submission as at 28 February can be furloughed with effect from 1 March.

It has not been provided that transferees are to have the right to access transferors’ payroll records for the purposes of determining the historic pay of furloughed employees on variable pay that is necessary to determine payments to be made under the Scheme.

Further, it has not been stated that the period of furlough will be deemed to be continuous as between the transferor and the transferee. This will be important to the extent a pre-transfer and/or a post-transfer period furlough is shorter than the 3 week period necessary to be subject to the Scheme.

Calculation of payments

The most complex aspect of the guidance and the Direction relates to the payments that employers can claim.

The Direction states that that employees will be treated as on variable pay for the purposes of calculating their “reference salary” (80% of which can be reclaimed, subject to the £2,500 per month cap) unless they are a “fixed-rate employee”. A “fixed-rate employee” is defined as an employee entitled under their contract to be paid an annual salary (and no other payment) in respect of basic hours determined by the contract, paid in equal instalments per pay period (of a number of weeks or a month) regardless of the number of hours worked in that period, and where the basic hours do not normally vary according to business, economic or agricultural seasonal considerations.

For variable pay employees, the employer can claim the higher of the employee’s earnings in the same month the previous year or the employee’s average monthly earnings for the 2019/2020 tax year. For fixed-rate employees the reference salary is the rate as at the last pay period before 19 March 2020.

It would appear that, in accordance with the direction, a salaried employee who earns contractual commission or bonuses during their normal working hours will be a variable pay employee, not a fixed-rate employee.

However, the guidance to employers relating to what they can claim tells employers to:

Choose the calculation you think best fits the way your employee is paid. For example, if you pay your employee a regular salary, use the calculation for fixed pay amounts. HMRC will not decline or seek repayment of any grant based solely on the particular choice of pay calculation, as long as a reasonable choice of approach is made.

This suggests that whether an employee is salaried should be the determining factor as to whether to treat them as a fixed-rate employee. However, the direction takes precedence over the guidance and, particularly as the guidance states that HMRC will not decline or seek repayment of any grant based on the choice of pay calculation as long as it is reasonable, it would seem to be open to employers to treat salaried employees who receive additional contractual remuneration for work performed within their normal working hours as variable pay employees, so that they can claim all aspects of remuneration covered by the Scheme, including that earned outside the employee’s normal, basic working hours.

Whether on fixed-rate or variable pay, the reference salary only includes “regular” salary or wages. This excludes “conditional payments” and benefits in kind, and only includes payments which arise from “a legally enforceable agreement, understanding, scheme, transaction or series of transactions”. It can include pay that varies according to the business’s performance, the employee’s contribution to the business’s performance, the employee’s performance of employment duties, or otherwise at the employer’s discretion only where pursuant to such a legally enforceable arrangement.

Taken literally, this leads to absurd results. All payments of wages are “conditional on a matter” in the sense that, in the normal course, the employee’s work is a condition of payment. That cannot be intended, of course. But what about overtime payments – which are “conditional” on working in excess of contractual hours, particularly if the overtime is not compulsory or guaranteed. And if it is included at all, how regularly must it be earned in order to be “regular” under the Scheme? The guidance states that any regular payments the employer is obliged to pay employees includes “past overtime”, without any qualification – so perhaps all and any overtime can be included for variable pay employees?

An on-line calculator for working out payments became available from 20 April, but this applies only to some employees who receive the same amount every pay period and is “aimed at organisations with only a small number of employees”. The guidance states that the online services will continue to be improved on a frequent basis, including supporting more employment situations with the calculator. Hopefully that will be done quickly and that this, and/or further updated guidance and Treasury directions, will help to provide clarity.

In any event, it seems inequitable that some salaried employees will have certain aspects of their remuneration excluded that could be recovered in the case of variable pay employees. This would seem to include overtime and call-out payments for salaried employees who receive nothing but their basic salary for working their normal, basic working hours.

For our observations on the main aspects of the Scheme, updated to take account of the above points, click here.

For our regularly-updated wider guidance for employers on the impact of the virus outbreak, click here.

Statutory Sick Pay and Shielding

On 16 April the legislation relating to statutory sick pay (“SSP”) was amended, with retrospective effect from 13 March, so that a person will be deemed incapable of work for a reason related to coronavirus, and so entitled to SSP, when they are isolating themselves because:

  • they are defined in public health guidance as extremely vulnerable and at very high risk of severe illness from Covid-19 because of an underlying health condition and
  • they have been advised by a notification (sent to, or in respect of, them) that, in accordance with that guidance, they need to follow rigorously shielding measures for the period specified in the notification.

This is the latest in a series of legislative amendments that give effect to promises made by the Chancellor in his budget on 11 March in relation to SSP in light of the coronavirus outbreak.

For further details of the promises made by the Chancellor and the extent to which they have been implemented, click here.

For our regularly-updated wider guidance for employers on the impact of the virus outbreak, click here.

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