For the duration of the coronavirus pandemic, a large number of working people in the UK have seen their income decrease and the future of their jobs uncertain. This has been a particularly unsettling time for those who are self-employed who do not have the protection of an employer to lean on in this time of need.

As of 13 May 2020, the government has launched a significant support package to help self-employed workers known as the ‘Self Employed Income Support Scheme’ (SEISS).

The SEISS scheme allows for self-employed workers to apply for a grant worth 80% of their average monthly trading profits to help them cope with the financial impact of coronavirus. This is averaged over the last 3 tax years and subject to a maximum of £7,500 per month.

The rules for working out average pay are complicated. But if you are potentially eligible for the grant HMRC will make contact directly and invite those who qualify to submit a claim. HMRC will also work out your average monthly profits for the purposes of the scheme.

The SEISS scheme is now a part of package of measures target to assist the self-employed. Those measures include:

  • Suspending the minimum income threshold to gain access to Universal Credit
  • Deferring Self-Assessment income tax payments
  • Deferring VAT payments
  • Emergency business loans in the form of:
    • the Business Interruption Loan Scheme
    • the Bounce Back Loan

HMRC estimates that 3.8 million self-employed workers could qualify under the SEISS scheme.There are useful on-line guidance notes produced by HMRC which you can read here.

There is also an online tool for self-employed individuals to check whether they are eligible.

Jas Dubb comments “The SEISS scheme comes as part of a raft of measures taken by government to try and stabilise the economic fallout from the COVID 19 pandemic.  Sensibly the government has had to look at the full spectrum of the UK workforce to provide targeted support to prop up the economy.”.

For any further guidance in relation to this update, or any other employment law related matter, please contact Jas Dubb on 0121 710  5929 or any member of the Employment Team at The Wilkes Partnership Solicitors at employment@wilkes.co.uk.

On Sunday 10 May 2020 the UK Government announced a “road map” to recovery in relation to the ongoing Coronavirus pandemic that hit the country in March this year.

As the lockdown restrictions are eased businesses will face different challenges ranging from getting staff back to work and decisions on when to relax furlough leave and whether there is a need around cutting costs and making redundancies.

James Leo, Head of Employment Law at The Wilkes Partnership considers the guidance on offer to assist employers, businesses and their staff in returning to work after lockdown.

Returning to the workplace

While it is advised employees who can work from home continue to do so, the government’s plans for returning to the workplace continues to emerge. This includes specific guidance for eight different sectors including construction, other outdoor workers, warehouses, labs and research facilities, contact centres and offices. Other guidance considers working in other people’s homes such as cleaners, restaurants offering takeaway or delivery, shops and similar environments and people who work in or from vehicles.

It is important for businesses to ensure they can meet a certain criteria before allowing their employees back to the workplace. This will include questions such as:

Is it essential?

As stressed by the government if people can continue to work from home they must continue to do so for the foreseeable future.

Is it safe?

Employers have a duty of care to manage and identify risks. This is to ensure it is safe to return to work and that there are sufficient safety measures in place such as protective equipment (e.g. gloves, hand sanitiser). In line with government guidance, social distancing measures are still in place and employers need to determine whether the two meter rule can be maintained. Employers are urged to take their time with gradual returns to work to test health and safety measures in practice and ensure they can work with larger numbers.

Is it mutually agreed with employees?

There should be a clear dialogue between employers and their staff. This can address any concerns employees may have such as travelling to and from work. Flexibility is required on both sides to accommodate working times and managing risks. Employers should be aware that some employees may not feel comfortable returning to work at this early stage. It may be that this will gain a great deal of friction in the coming weeks and months.  If not handled carefully, the issue may lead to claims for disability discrimination under the Equality Act 2010 (“EA 2010”), constructive dismissal, unfair dismissal for health and safety issues under the Employment Rights Act s100 (“ERA 1996”) and detriments suffered as a result of not attending work due to health and safety concerns under s44 ERA 1996.

In particular Under s100(1)(d) and (e)  ERA 1996 an employee will be deemed as unfairly dismissed if the principal reason for dismissal is that in “circumstances of danger which the employee reasonably believed to be serious and imminent”.  Employers should listen to their employees’ concerns about returning to work, consider whether the employee in question suffers from any underlying medical condition which makes them vulnerable to the virus and also to consider if they suffer from a disability requiring adjustments to be made.

Short-term working/ Redundancies

The government furlough scheme has been extended to October 2020. When planning a return to the workplace, a business may decide not all of the existing workforce will be needed.

This may create a situation whereby it starts to consider:-

  • Reduced working hours
  • Continuing furlough leave for employees
  • Furloughing other members of staff
  • Recruitment freezing
  • Redundancy
Reduced hours 

Employers may want to consider reducing the working hours for staff if there is a reduced level of work upon returning. This is usually considered  a temporary measure and should be agreed in writing.

Further furlough

Employers should check their furlough letter to individual staff in order to see if it included a specific date for return and whether a specific percentage salary payment was included. If employers wish to continue to keep employees furloughed it may be worth updating their letters in order to make further updated agreements with staff for the continuance of furlough leave and payment rates.

Redundancy

Employers may not be able to continue trading or there may only be enough business for significantly fewer staff. This may create a need to consider redundancy planning. Employers need to ensure that they follow correct procedures and apply them fairly. Employees have rights in a redundancy situation.

James Leo comments: “Given that the nature and timing of any further relaxation of restrictions is uncertain, it is sensible for a business to consider all options and have the capability to move quickly from one scenario to another”.

For any further guidance on this issue or any other employment related matter, please contact James Leo or a member of the Employment Team at The Wilkes Partnership Solicitors. Alternatively email us at employment@wilkes.co.uk.

In this video Andrew Hasnip & Ellie Holland, Partners in the Private Client Team at Wilkes discuss with Helen Smart, Solicitor in our Corporate Team, the importance of a Solicitor drafted Will. Alongside this we also discuss how you can still make a Will in light of the current social distancing measures taking place due to COVID-19.

If you have any questions in relation to any matter arising from this video update you can contact Andrew Hasnip on 0121 710 5830 or ahasnip@wilkes.co.uk or Ellie Holland on 0121 733 4334 or eholland@wilkes.co.uk.

As part of our COVID-19 Helpline & Resource Centre we are offering a no cost, no obligation, initial consultation to businesses and individuals affected by COVID-19.

Here at Wilkes we remain open and ready to support you at this difficult time. Our Family Law Team are offering telephone or video interviews that can take place within 48 hours of initial instruction during the lockdown period.

If you are experiencing difficulties in your relationship during the lockdown, www.relate.org.uk can provide you with advice and tips for keeping relationships healthy during self-isolation and social distancing. If you feel your marriage has irretrievably broken down and you would like a Divorce, you do not have to wait until the lockdown is over as ‘The Family Justice System is continuing to function as normally as possible despite the present pandemic’ – Sir Andrew McFarlane, President of the Family Division 19.3.20.

Our specialist team of solicitors will firstly attempt to resolve your financial issues via correspondence in the most constructive manner and if Court proceedings need to be issued, and this should only be done as a last resort. The First Directions Appointment (FDA) and the Financial Dispute Resolution Appointment (FDR) can be dealt with via Telephone or Video Call if the Court buildings are not open by then due to the government restrictions.

Also, if you are experiencing co-parenting issues, we can help you make new or revised plans to help you get through the next few months by making contact with the other parent on your behalf. Alternatively, you may wish to contact a family mediator to help improve the communication between you and work things out. Further guidance on this can be found here.

If necessary and as a last resort, we can assist you in the preparation and submission of an application for a Child Arrangement Order to the Court. CAFCASS are carrying out their initial safeguard checks in the usual way for the First Hearing Dispute Resolution Appointment (FHDRA). The FHDRA can be dealt with via Telephone or Video Call if the Court buildings are not open by then due to the government restrictions. All interviews with the parties, professionals and children are being undertaken remotely.

If you require any help or advice in relation to any of the above please contact Jackie Lee on jwlee@wilkes.co.uk or 0121 784 4443.

 

 

 

In this video Aaron Keene, Partner & Head of the Family Law Team at Wilkes discusses with Helen Smart, Solicitor in our Corporate Team, some important updates in relation to Family law in light of COVID-19.

If you have any questions in relation to any matter arising from this video update you can contact Aaron Keene on 0121 710 5947 or abkeene@wilkes.co.uk.

As part of our COVID-19 Helpline & Resource Centre we are offering a no cost, no obligation, initial consultation to businesses and individuals affected by COVID-19. You can also stay up-to-date with our latest legal updates by clicking the button below.

In this article Mark Hodgson, Partner in the Real Estate team at Wilkes and Katie Briggs in the Property Litigation team, identify the issues for commercial landlords and tenants as a result of the Coronavirus Act 2020 and what action can still be taken by landlords if rent is not paid during lockdown of which commercial tenants should take note.

The March quarter day (25th) fell due for tenants shortly after the lockdown was announced and The Coronavirus Act 2020 was brought in by the Government. Section 82 of the new legislation is important for landlords and tenants at commercial properties.

There have been concerns on both sides regarding the rent due from tenants who are struggling to pay whilst the lockdown continues and retail units cannot open. This has then undoubtedly affected the income stream for landlords and any associated mortgage or loan payments due.

Section 82 under the Act itself introduced a moratorium on forfeiture of leases until 30th June 2020 as a result of a tenant being unable to pay the rent due during this period. Under normal circumstances a landlord would be entitled to re-enter the premises and change the locks or alternatively issue proceedings on the basis of forfeiture. Additionally, during this period any demand for rent or conduct by a landlord suggesting a lease exists will not amount to a waiver of the right to forfeit a lease. The date of 30th June 2020 is subject to review and may be extended by the government as necessary. During this period the rent remains due and once the moratorium has been lifted landlords will be entitled to forfeit leases for any unpaid rent.

Whilst it has been possible for some agreements to be reached between landlords and tenants, in terms of rent holidays, rent reductions (on a temporary basis) and allowance for payments to be made monthly, some tenants have failed to make any payment or even communicate with their landlord to agree any temporary measure until 30th June 2020.

Recently, on 23rd April 2020, the government announced a moratorium would be placed on insolvency proceedings with a ban on the temporary use by landlords in issuing statutory demands (presented during 1 March and 30 June 2020) or winding up petitions (presented from 27 April to 30 June 2020) against their tenants who have not paid the rent due. This moratorium is expected to last until 30th June 2020 but the legislation has not yet been passed to confirm the specifics of this moratorium. A general stay has been imposed on all winding up petitions by the Companies Court in any event.

The Government have further proposed restrictions on recovery of rent through the use of Commercial Rent Arrears Recovery (CRAR) save for rent which has been due and outstanding for 90 or more which can still be enforced using this method.

This procedure would usually allow landlords of a commercial premises to instruct an enforcement agent (for example a certificated bailiff), after giving 7 days’ notice, to take control of a tenant’s goods and sell them in order to recover the value of the rent arrears.

If a Landlord were to proceed down this route, it would waive their right to forfeit for the current arrears, although a new right would accrue if rent due on the next rent payment date is unpaid.

Landlords remain able to use other methods of enforcement with tenants who do not agree any concessions for rent during this period or are utilising this time to avoid making any payment at all.

These include the following:

Sue for arrears

The Landlord may issue a demand for payment, coupled with a threat that County Court Proceedings will be issued on expiry of the deadline set in the demand in default of payment.

Although this can be an effective tool, court proceedings considered to be money claims are being generally adjourned by courts at present so the process is unlikely to elicit the rent or money due from the tenant for a few months. Court proceedings of this nature are often rejected in favour of other methods of recovery because they can be expensive, and it can take months to receive a hearing date, if there are any grounds to dispute the demand. In this time, the lockdown and moratorium may have been lifted. It is worth bearing in that at that juncture the landlord could consider forfeiting the lease instead which would be a quicker and cheaper method to utilise.

Pursuing a guarantor

If a person or company has agreed to act as a guarantor for the tenant’s covenants under the lease, it is open to the landlord to consider pursuing them if the tenant is in arrears of rent.

Depending on the provisions in the lease and the guarantee given by the guarantor, the usual way to enforce the guarantor’s obligations would be to issue court proceedings.  A landlord may also, in certain circumstances, be able to claim against a former tenant of the premises.

Rent Deposit

Depending on the terms of any rent deposit deed landlords may wish to consider utilising the deposit against rent arrears due from the tenant. The tenant will need to replace the deposit at a later date but would alleviate the pressure for both landlord and tenant during the interim.

To conclude, how the landlord proceeds is dependent on the solvency of the tenant and whether the landlord wants to prioritise retaining the tenant once the moratorium has been lifted. Any agreement regarding the rent during this period should be set out in a side letter to ensure it is clear this is temporary measure and not a variation of the lease terms generally.

Mark and Katie recommend that the first course of action is to start a dialogue with the landlord to achieve a sensible and reasonable compromise.

Any assistance required in achieving an agreement can be dealt with the team at Wilkes. Mark can be contacted on 0121 710 5848 and Katie on 0121 710 5839 or via email at mhodgson@wilkes.co.uk or kbriggs@wilkes.co.uk.

In this video Jeremy Parkin and Helen Smart from Wilkes Corporate & Commercial teams discuss commercial contracts in the wake of COVID-19.

If you have any questions in relation to any matter arising from this video update you can contact Jeremy Parkin at jparkin@wilkes.co.uk or Helen Smart on hsmart@wilkes.co.uk.

As part of our COVID-19 Helpline & Resource Centre we are offering a no cost, no obligation, initial consultation to businesses and individuals affected by COVID-19. You can also stay up-to-date with our latest legal updates by clicking the button below.

The evolving situation surrounding COVID-19 is causing unprecedented disruption to businesses and individuals around the globe. Every business is having to make swift and decisive decisions on a daily basis to protect jobs and ensure the future success and ultimately the survival of their businesses.

Being an owner-managed business ourselves we are feeling the impact in the same way as many of our clients. At times like these business owners and leaders must pull together to proactively plan a sustainable route forward.

Our lawyers are working around the clock to service clients, providing them with proactive advice across the full spectrum of legal services.

COVID-19 Helpline

With this is mind we are offering clients a no cost, no obligation, initial consultation designed to help you understand any issues facing you or your business and help you map out the best route forward.

To take advantage of this offer please contact our COVID-19 Helpline which will be manned Monday – Friday between the hours of 9am-5pm.

Calls made outside of these hours will go to voicemail and a member of the team will be in touch as soon as possible the next working day.

Once your initial requirements have been identified, we will then schedule a convenient time for your consultation with the relevant legal specialist.

Please call 0121 733 4303 or email helpline@wilkes.co.uk

Resource Centre

Our newly launched COVID-19 Resource Centre is there to provide you with our latest thinking and commentary on issues relevant to you and your business.

In light of the challenges presented to businesses from the impact of Coronavirus (COVID-19) the government announced emergency legislation in the form of the Working Time (Coronavirus Amendment) Regulations 2020 (“the 2020 Regulations”).

The 2020 Regulations were brought into force with effect from 26 March 2020 and allow workers to carry over up to four weeks’ annual leave into the next two leave years.

Pam Sidhu, Senior Associate Solicitor at Wilkes, considers what effect this will have on businesses.

What are the changes and what does this mean?

The 2020 Regulations amend the Working Time Regulations 1998 (“WTR”) and ease the requirements on businesses to ensure that workers take their annual leave in any one year. Under Regulation 13, employees are entitled to a minimum of four weeks’ annual leave each year pursuant to EU law. Regulation 13(9) WTR provides that this period of leave may be taken in the leave year only in respect of which it is due; it may only be replaced by a payment in lieu where the worker’s employment is terminated.

The 2020 Regulations amend Regulation 13 of the WTR to permit the carry-over of any of such untaken leave where it was not reasonably practicable to take it in the leave year “as a result of the effects of the coronavirus (including on the worker, the employer or the wider economy or society)“. Carried-over leave may be taken in the two leave years immediately following the leave year in respect of which it was due.

The 2020 Regulations also limit an employer’s ability to refuse an employee taking leave on a particular day. Under the WTR, employers were able to require a worker to not take leave on a particular day provided notice was given in accordance the WTR. However, the 2020 Regulations introduce a new requirement that employers will only be able to refuse leave where the employer has “good reason” to do so.

These changes do not apply to the additional 1.6 weeks’ annual leave granted by Regulation 13A of the WTR, which can still be carried forward one leave year (but not further) through an agreement between workers and their employers.

Pam Sidhu explains, “Under the WTR, there is an obligation on employers to ensure their workers take their statutory entitlement in any one year and failure to do so could result in a financial penalty. The 2020 Regulations are aimed at allowing businesses under particular pressure from the impacts of COVID-19 the flexibility to better manage their workforce, while protecting workers’ right to paid holiday. These measures will also provide workers with the security that they can carry over holiday into the next two leave years, where it is not possible or practicable for them to take some, or all, of the holiday they are entitled to due to coronavirus.” 

For any further guidance on this issue or any other Employment related matter, please contact Pam Sidhu on psidhu@wilkes.co.uk or 0121 710 5815.