Davies and Partners Solicitors Joins the Bristol Green Capital Partnership

We are pleased to announce that Davies and Partners Solicitors has become a member of the Bristol Green Capital Partnership.

Bristol Green Capital Partnership is a network of organisations that have pledged to work towards a sustainable city with a high quality of life for all. The Partnership is a further boost to our move to become more sustainable generally and in our Bristol office move in December to a new location within the Aztec West Business Park in Almondsbury, Bristol.

Directors Suzanne Williams and Ewan Kilgour are managing the Bristol office relocation, assisted on sustainability issues by Head of Construction, Jan Grimshaw.

Several patients affected by Bariatric surgery errors at Southmead Hospital, Bristol

Davies and Partners’ Medical Negligence team specialises in surgical cases and are currently acting for several Claimants who underwent Bariatric surgery involving a surgical error made by Mr James Hopkins, Consultant General Surgeon at Southmead hospital in Bristol. 

The surgical error Mr Hopkins made during these surgeries have caused each Claimant to suffer avoidable complications and injury.

Employment Law Update - Back to the Future
Furlough Scheme back, Job Support Scheme delayed

Another day, another change in direction. Just as we were all beginning to implement the Job Support Scheme this has been delayed and we are back with furlough. So far as I can ascertain the Government has not published the detail as yet. However, from what I can gather it is intended that ongoing furlough will look much more like the scheme back in the summer. The Government will contribute 80% of salary up to £2,500 per month. The employer will need to pay National Insurance contributions and employer pension contributions. There will still be the availability of flexi-furlough.

It appears that there is no requirement for a person being furloughed to have previously been on furlough, but they must have been on the company’s payroll as at 23:59 on Friday 30th October.

Davies and Partners’ Doubles up on Rugby Player Sponsorship

Davies and Partners is to continue and expand upon, its long-standing sponsorship of Players at Gloucester Rugby Club.
This year the Firm will be sponsoring New Zealand born, Full Back, Jason Woodward, who has played for the Cherry and White’s since 2016. Although Jason was born in New Zealand, he is English qualified through residency and has trained with the English squad.

In addition, Davies and Partners will also be sponsoring a second player - 19-year-old Hooker, Ethan Hunt, who was born and bred in Gloucester and who has risen through the Club’s Academy Squad. Ethan played his Club rugby for Longlevens RFC, where our IT Manager Dan Smith, is a coach with the junior section of the club.

Grenfell Tower - taking action

Before the night of 14th June 2017, to most people around my age, Grenfell was Joyce Grenfell the comedienne who delivered quirky monologues as a strict school mistress. Now Grenfell means tragedy. The impact of Grenfell has been rippling through the construction industry and the emergency services ever since that night. Recently, we had harrowing testimony from those involved in the design and construction of the refurbishment.

In response to the Grenfell disaster, the Government commissioned an Independent Review into Building Regulations and Fire Safety by Dame Judith Hackitt, which was published on 17 May 2018. The review introduced the notion of a ‘Golden Thread’ of information about structural and fire safety, which is reflected in the Building Safety Bill (the Bill) published on 20 July 2020. It is intended that design and fire safety information will be held digitally in accordance with specified standards and will weave through the various stages of the construction process and into occupation.

Employment Law Update - Job Support Scheme

The Government has now announced significant changes to the intended Job Support Scheme. The basic principles of the Scheme, such as the 6 month running period starting on the 1st November and the eligibility criteria for businesses, remain the same as set out in our previous explanation (https://www.daviesandpartners.com/news-events/427-employment-regulatory-law-update-move-over-furlough-leave).

However, there are a number of key changes that have been implemented to offer greater support to businesses. These changes are available across the UK and are not limited to businesses located in high-alert level areas. The significant details which have so far been announced are:

• The required minimum number of normal working hours that an employee must work has been reduced from one-third to 20%, during which time employers must still pay the contracted wage. Therefore, if an employee previously worked for 5 days a week, they would now only need to work 1 day to become eligible.

Assignment – accrued and future rights

Energy Works (Hull) Ltd v MW High Tech Projects UK Ltd and OUTOTEC (USA) INC [2020] EWHC 2537 (TCC) concerned a power plant. The main contract was an amended IChemE Red Book 5th edition, 2013 and the subcontract an amended IChemE Yellow Book 4th edition, 2013. The main contract was terminated by the Employer (EWHL) and the subcontract was assigned to EWHL. All well and good, until EWHL commenced proceedings against the contractor (MW) for damages estimated to be in the sum of £133m for the costs of rectifying defects, delay damages and additional costs. MW disputed the claim and pursued a counterclaim against EWHL. MW sought to claim against the subcontractor (O) in respect of sums claimed by EWHL.

The Court had to decide preliminary issues as to the effect of the assignment from O to EWHL and whether MW could pursue its claims against O as direct claims under the sub-contract or under the Civil Liability (Contribution) Act 1978 (CLA).

No More Reverses on VAT Reverse Charge

Despite being delayed on two occasions, HMRC’s Domestic Reverse Charge for Building and Construction Services (VAT Reverse Charge) starts in the Spring of 2021.

This means that the construction sector has another change to grapple with, against the already uniquely challenging Covid-19 backdrop.

The VAT Reverse Charge is to help combat organised crime groups operating within the construction industry. We all know what these criminals do - charge VAT and never account to HMRC for it. However, moving the obligation to pay VAT to HMRC up the supply chain impacts on the cashflow of contractors and subcontractors.

Who is affected by these changes,and when?

Contractors and subcontractors who are registered for the purposes of the Construction Industry Scheme (CIS) and receive building and construction services from others will be required to pay those others net of VAT and account for the VAT to HMRC.

Employment & Regulatory Law Update - Move over furlough leave, make way for the Job Support Scheme

It has been clear for some time that the furlough scheme would come to an end on 31st October. The Chancellor has been under increasing pressure to put something in its place and yesterday the Job Support Scheme was announced. This is about supporting jobs where there is some work available and it is believed that in time the work will increase. If a role is genuinely redundant the scheme encourages this fact to be recognised so that employees are not kept on when there is no prospect of a return and are encouraged to look for work elsewhere, perhaps in a different sector.

The detail is yet to be published, but the following headlines are known: -

• An employee must work at least one-third of his or her normal working hours. There is no problem with the employee working longer hours than that. The employer must pay for hours actually worked in full. For the hours not worked, the Government will pay one-third, the employer will pay one-third and the employee will give up one-third of his or her wage.

Covid-19 Impact on Employment Law

With the furlough scheme apparently on the wind down there have been fewer employment law developments of late. The Government has been concentrating upon Covid-19 and more recently Brexit has come onto the agenda. Courts and Tribunals have been hearing many fewer cases and therefore not making much new law.

Covid-19 has further impacted upon delays in the Employment Tribunal service. Pre-lockdown there was a backlog of single cases of 30,687. By the end of June, it had increased to 36,616. No doubt it is higher than this now. Tribunals stopped hearing cases altogether for a period and have more recently been undertaking hearings using video facilities. To compound this, the increase in redundancy dismissals which has already occurred, and which will no doubt accelerate during the Autumn, is predicted to lead to a further rise in cases, especially as many employees will fail to obtain alternative work quickly. The wait for a final hearing is getting longer and longer. The worst region appears to be the South East. At present cases of 2 or more days duration are being listed for well into 2022!

Isaac Qualifies as Solicitor and joins the Construction Department after training at Davies and Partners

Davies and Partners is delighted to announce that Isaac Cole has qualified as a Solicitor following the completion of his training contract with the firm.

Isaac started work at Davies and Partners as a secretary whilst he studied for his Legal Practice Course (LPC) four years ago. Isaac began his training contract in 2018. As a trainee, Isaac had placements in the Firm’s Bristol Office in the Medical Negligence Department and then in the Construction Department before he moved to the Firm’s London, Office.

Having successfully completed his two years of training and qualified, Isaac has now been offered a position as Solicitor in the Construction Department where he will deal with contentious construction and general litigation matters.

Commenting on his new role Isaac said, “The process to qualify as a solicitor is acknowledged as being extensive and testing and I can certainly vouch for this. I am extremely proud and excited to have now qualified and to begin my career as a Solicitor. Davies and Partners has accommodated and supported me throughout the years of my training and I am now looking forward to a long and prosperous career with the Firm.”

Commenting Legal Director Suzanne Williams, who heads up the Firm’s Bristol Medical Negligence team where Isaac began his training, said, “Qualifying as a Solicitor is a long and at times difficult journey. It is very competitive and there are many stages that have to be completed. Isaac has worked extremely hard and we would all like to congratulate him on reaching this final goal and to wish him all the very best in his future career.”

Legal Director Tracy Edwards, Achieves Reaccreditation onto Prestigious Law Society Clinical Negligence Panel

Davies and Partners Solicitor’s Legal Director Tracy Edwards is celebrating receiving reaccreditation onto the prestigious Law Society’s Clinical Negligence Panel for the fourth time.

Tracy, who heads up the medical negligence and personal injury teams in the firm’s Birmingham office, has a wealth of experience, representing people who have suffered in complex catastrophic medical negligence and personal injury claims.

She represents clients throughout the UK and on a wide range of claims involving many types of negligence such as birth injury, brain injury, cerebral palsy, spinal injury as well as cancer and other areas of medical negligence.

Gloucester Virtual 10k raises £10k

The original historic Gloucester 10k was due to be run for the 8th time this year. It was conceived 8 years ago after a disastrous commercial Gloucester 10k and an immediate campaign along the lines of “Surely we can organise a 10k in our City”. The idea was to have an attractive race showcasing Gloucester, getting the community involved in organising the race, enjoying the race and with all proceeds going back to the community. Over the previous 7 years with massive assistance from the Gloucester community the race has been able to pour back all of the proceeds, amounting to over £50,000 into the Gloucestershire community.

Race Director, Nigel Tillott said “This year we held on as long as possible, but by mid-May we had to make a call. Had we held on any longer major spending commitments would have been made. Gloucester Quays Rotary has been one of the major organisers of the event from Day 1 and didn’t want to let it go. It had already been agreed that Sue Ryder Leckhampton Court Hospice would be a major beneficiary of the run and initial planning had started in coordination with the Charity. So, the Gloucester Virtual 10k was launched with Sue Ryder Leckhampton Court Hospice being the beneficiary with only 1 month to the race. We had no idea how successful it would be but thought that Sue Ryder Leckhampton Court Hospice alongside many other charities really needed the funds as most of its fundraising sources had dried up with Covid-19. Therefore, we thought that even if we raised a little money it would be very helpful.

Zoom presentation to Employees Reviews half-year results and the effects of Covid-19 lockdown

Davies and Partners’ Chief Executive Ewan Lockhart addressed over 100 of the firm’s employees via a Zoom presentation this week, to highlight the Firm’s half year results, including the 4 months during the Coronavirus lockdown.
During the informative 45-minute presentation, Ewan explained how the measures taken by the Firm during the last few years had proved extremely beneficial. This included converting from a traditional unlimited liability Partnership to a Limited Company in 2017. This process may have gone unnoticed by many but has proved significant in light of the Coronavirus pandemic.

In addition, at the start of 2019, Davies and Partners had taken the decision to move the business to a more Paper-lite working environment. The investment in new digital systems has proved highly beneficial, as within days of the Government’s announcement of Lockdown in March, the majority of the Firm’s staff were able to work efficiently, effectively and professionally out of the office and were able to maintain a seamless, high level of service for clients.

No-fault divorce 

On 17 June 2020, the Bill changing the law to allow couples to obtain a no-fault divorce was finally approved by the House of Commons. Subject to any amendments by the upper House and consideration being given to how it will be implemented, it is expected that it will become law in autumn 2021.

The existing law requires couples to allege “grounds” of adultery or unreasonable behaviour unless they are prepared to wait for at least two years. The need to prove grounds does not help in keeping matters on an amicable basis, particularly when there are children involved and the couple needs to have an ongoing relationship as parents.

Employment Law Update - Covid-19 - Furlough Leave – another layer of complexity thrown in

The Government has now issued further guidance on how furlough leave will work from 1st July when it is possible to furlough an employee on a part-time basis. By now you will be aware that the changes are hardly likely to be straightforward.

Broadly, if an employee hasn’t been furloughed by now (10th June was the deadline for first furloughing) a business will not be able to furlough them at any future point.

There is an exception for those returning from various forms of family friendly leave – maternity, adoption, shared parental, paternity or parental bereavement. This is provided that it started before 10th June and finished after this date and the individuals are on the business’ PAYE payroll on 19th March.

From 1st July the total number of employees on furlough leave cannot exceed the maximum on furlough leave at the business during any previous claim period (although returners from family friendly leave can be added to this number).

Gloucester 10k Goes Virtual

The highly successful Gloucester 10K run, which was scheduled to take place this summer has like many events, had to be cancelled due to the Coronavirus crisis. But runners need not despair, as the organisers who include a team from Davies and Partners Solicitors working alongside Gloucester Quays Rotary, are determined that the spirit and fundraising benefits of the race will continue via a Virtual 10K event, to take place over the weekend of 4-5 of July.

The Gloucester Virtual 10K will be open and accessible to athletes and amateur runners alike who can enter for £10 as individuals of within corporate teams of four or more. All proceeds will go to Sue Ryder Leckhampton Court Hospice, which would have benefited from the actual race this year. The Hospice provides fantastic support across the county, but like many charities, the Hospice has been very severely hit by the current crisis, not least due to the lack of fundraising events on which it relies.

The Virtual 10K offers runners complete flexibility, as entrants can tackle the 10K in one run or in shorter bite size segments, running whenever and wherever they want, throughout the weekend.

One of the key features of the race in previous years has been the corporate entries, which Davies and Partners has been delighted to support. There is no cost supplement for corporate entries in the virtual race. The minimum number of runners is four per team at a cost of £10 per person with an optional medal.

Employment Law Update - Covid-19 - Furlough Leave – the beginning of the wind-down

On Friday Rishi Sunak announced the progressive wind-down of the furlough scheme. Whilst more detail is awaited particularly around the mechanics of mixing part-time working and furlough leave, there is now a fairly clear timetable against which businesses can start to plan their strategy: -

10th June – This is the last day upon which an employer can furlough an employee for the first time. As before, the minimum period of furlough leave is 3 weeks.

30th June – The furlough scheme is not available for any employees not previously furloughed. It will be noted that the closure date is effectively 10th June. However, it would appear that if an employee has been previously furloughed but doesn’t happen to be furloughed in June, that employee could be furloughed subsequently. However, in line with the policy to get people back to work, employers will not be able to claim in any month for more employees furloughed than have been furloughed in previous months.

1 July – For the first time it will be possible for employees to be partly furloughed and to work part-time hours. It would appear that employers will be able to choose the hours to suit, the employee will be paid in full by the employers for those hours and the employer will be responsible for tax and National Insurance contributions on those payments. The employee will need to specifically agree to the new arrangements and subject to that the furlough scheme and Government payments will still apply to those hours when the employee would normally be working but is on furlough leave.

New protection for office-based staff:

Like every other profession, construction is calibrating to the new normal. For the latest on new normal in the office, please have a look at:
https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/offices-and-contact-centres

The construction team will continue to work from home, with admin functions performed by a support team based in the office. We worked at home a lot before the pandemic, so it is pretty much business as usual.

Continued support for construction clients

We continue to support our construction clients, assessing risk on existing and prospective projects in the light of the pandemic.

Health risk is, of course, a top concern and we are pleased to see at https://www.gov.uk/government/news/further-expansion-of-access-to-coronavirus-testing-helps-protect-the-most-vulnerable that: “construction workers to emergency plumbers, research scientists to those in manufacturing - can now be tested”.  “All they need to do is go on the internet and apply for a test.”

Employment Law Update - Covid-19 - Furlough Leave – are we there yet?

The HMRC portal for claiming Furlough Leave payments is up and running. HMRC says it is confident that the system has capacity to deal with all claims and that it will make payments within 6 days of application. The proof will be in the pudding.

In advance of opening the portal the Government issued a flurry of further information in the latter part of last week, a fair amount of it on Friday afternoon. Clarification has been added, but there remain gaps and inconsistencies.

The full amount of information is now vast, but I thought it may be helpful to highlight a few points:-

Length of the scheme – It has now been extended to 30th June and could be extended further. It is thought that this change was undertaken now because some larger employers contemplating mass redundancies once the scheme ends would by law have had to start mass consultation by the middle of April. That wouldn’t have been great for morale at this very uncertain time and particularly so when businesses have no inkling of the ‘exit’ strategy and therefore cannot plan effectively.

The extent of the agreement between employer and employee – In the middle of last week the Treasury issued a Direction to HMRC setting out how it is required to operate the Furlough scheme. The document isn’t the easiest to understand, but said that in order to make a claim in relation to an employee there had to be a written agreement between the employer and employee, which could be in electronic form and in relation to which the employee specifically agreed to cease all work in relation to their employment. Prior to that point it had been understood that obtaining written consent from employees wasn’t essential. The various editions of the Guidance issued to employers, and we are now on our fifth version, have said different things. Subsequent to the Direction, Friday afternoon’s Guidance says that the agreement between employer and employee needs to be consistent with employment law and specifically envisages that this doesn’t necessarily mean that a written response is required from the employee. Good practice must be for employers to seek confirmation of agreement in writing, but if this is not possible it would seem that all is not lost.

Covid-19 Updated SOP

It has been a busy short week, with a focus on Covid-19, of course. Since our news post last week an updated SOP has been issued which may be accessed at:
https://www.constructionleadershipcouncil.co.uk/news/site-operating-procedures-version-3-published/

Employment Law Update - Covid-19 - Furlough Leave – latest tweaks!

The expectation is that employers will be able to start making claims in relation to employees on furlough leave from next week. In the meantime, further information has been issued upon the working of the scheme. Whether this will be the last we shall have to wait and see.

The Treasury has issued a Direction to HMRC in relation to how it is required to operate the scheme and further slightly updated guidance has been issued to the wider pubic. The Direction to HMRC is not exactly in user-friendly language! The following points appear to be of relevance: -

• As we know employees must be instructed to cease all work, but the Direction says that this scheme only applies if this is agreed in writing between the employer and employee. Agreement in writing can include an exchange of emails. However, some employers who have already furloughed employees may not have specifically sought confirmatory agreement from employees in these terms – especially where contracts include a right to lay-off in the first place and there is no contractual variation involved. Therefore, I would suggest that it is worth reviewing the mechanism by which employees were put on Furlough Leave before this detail was announced to ensure that no technical failing will be argued at a later date.

April 8 - Construction Unit Update: Coronavirus

We continue to adapt as we help our clients work out whether to keep sites open during the lockdown and how to operate contract provisions rarely looked at before this pandemic was declared. It is looking likely that the lockdown will be extended and in England at least it is business if possible on construction sites. Scotland and Wales may plough their own furrow.
The latest guidance (7 April) for keeping workers safe is at:

Employment Law Update - Covid-19 - Furlough Leave – further details 

The Government has now issued further guidance filling in some of the blanks. Unfortunately, there remain obvious omissions, particularly in relation to holiday. For now, all that can be said for sure is that holiday continues to accrue during Furlough Leave. It is possible that it can be taken without interrupting Furlough Leave and that employers have to top up to normal pay whilst holiday is being taken – but that is speculation. Hopefully, further guidance will come as it would be very helpful.

Some clarifications and expansions: -

• It is possible to re-employ an individual and furlough them if they left after 29th February even if the reason for departure was not redundancy. However, before simply doing so employers should work through the consequences of that action.
• As had previously been understood it is possible for a furloughed worker to undertake work elsewhere – provided of course it is not in breach of the contract with the employer.